XXXXXXX VARIABLE LIFE INVESTMENT FUND
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
September 7, 1998
Xxxxxxx Investor Services, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Underwriting Agreement for Class B Shares
Dear Sirs:
Xxxxxxx Variable Life Investment Fund (the "Fund") has been formed under
the laws of the Commonwealth of Massachusetts to engage in the business of an
investment company. The shares of beneficial interest of the Fund ("Shares") are
currently divided into certain portfolios ("Portfolios"), each of which (with
the exception of the Money Market Portfolio) is divided into two classes of
shares, Class A and Class B shares. However, additional Portfolios and/or
classes of shares may be established from time to time by action of the
Trustees. If the context requires and unless otherwise specifically provided
herein, the term "Fund" as used in this Agreement shall mean, in addition, each
separate Portfolio now existing and subsequently created. The Fund has selected
you to act as principal underwriter as such term is defined in Section 2(a)(29)
of the Investment Company Act of 1940, as amended (the "Investment Company
Act"), of the Class B Shares of the Fund and you are willing to act as such
principal underwriter and to perform the duties and functions of underwriter in
the manner and on the terms and conditions hereinafter set forth. Accordingly,
the Fund hereby agrees with you as follows:
1. Delivery of Fund Documents. The Fund has furnished you with copies,
properly certified or authenticated, of each of the following:
(a) Declaration of Trust of the Fund dated December 11, 1997, as
amended to date, (the "Declaration of Trust"), including a
(b) Written Instrument to Establish and Designate Separate Series of
Shares, as amended or supplemented from time to time.
(c) Written Instrument Establishing and Designating Separate Classes
of Shares, as amended or supplemented from time to time.
(d) By-laws of the Fund.
(e) Resolutions of the Trustees of the Fund selecting you as
principal underwriter and approving this form of Agreement.
The Fund will furnish you from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, if any.
The Fund will furnish you promptly with properly certified or
authenticated copies of any registration statements filed by it with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
("Securities Act"), or the Investment Company Act, together with any financial
statements and exhibits included therein, and all amendments or supplements
thereto hereafter filed.
2. Registration of Additional Class B Shares. The Fund will from time to
time use its best efforts to register under the Securities Act such Class B
Shares as you may reasonably be expected to sell on behalf of the Fund. You and
the Fund will cooperate in taking such action as may be necessary from time to
time to qualify Class B Shares so registered for sale by you or the Fund in any
jurisdictions mutually agreeable to you and the Fund, and to maintain such
qualifications. This Agreement relates to the issue and sale of Class B Shares
that are duly authorized and registered and available for sale by the Fund,
including redeemed or repurchased Class B Shares if and to the extent that they
may be legally sold and if, but only if, the Fund sees fit to sell them.
3. Sale of Class B Shares. The Fund has been formed to provide an
investment vehicle for the separate accounts of life insurance companies
offering variable life insurance policies and variable annuity contracts.
Consequently, when used herein the terms "investor", "public", and similar terms
include such insurance companies and their separate accounts. No person other
than you is authorized to act as principal underwriter (as such term is defined
in the Investment Company Act) for the Class B Shares of the Fund. Subject to
the provisions of paragraph 5 and 7 hereof and to such minimum or maximum
purchase or other requirements as may from time to time be currently indicated
in the Fund's registration statement or prospectus, you are authorized to sell,
as agent on behalf of the Fund, Class B Shares authorized for issue and
registered under the Securities Act. You may also purchase as principal such
Class B Shares for resale to the public. Such sales will be made by you on
behalf of the Fund by accepting unconditional orders to purchase such Class B
Shares placed with you by investors and such purchases will be made by you only
after acceptance by you of such orders. The sales price to the public of such
Class B Shares shall be the public offering price as defined in paragraph 6
hereof.
4. Solicitation of Orders. You will use your best efforts (but only in
jurisdictions in which you may lawfully do so) to obtain from investors
unconditional orders for Class B Shares authorized for issue by the Fund and
registered under the Securities Act, provided that you may in your discretion
refuse to accept orders for Class B Shares from any particular investor.
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5. Sale of Class B Shares by the Fund. Unless you are otherwise notified
by the Fund, any right granted to you to accept orders for Class B Shares or to
make sales on behalf of the Fund or to purchase Class B Shares for resale will
not apply to Class B Shares issued in connection with the merger or
consolidation of any other investment company with the Fund or its acquisition,
by purchase or otherwise, of all or substantially all of the assets of any
investment company or substantially all the outstanding shares of any such
company and such right shall not apply to Class B Shares that may be offered by
the Fund to shareholders by virtue of their being holders of Class B Shares of
the Fund, including Class B Shares to be purchased through reinvestment of
income dividends and capital gains distributions.
6. Public Offering Price. All Class B Shares offered and sold to
investors by you will be offered and sold at the public offering price for that
class of shares. The public offering price for all accepted subscriptions for
Class B Shares will be the net asset value per Class B Share, as determined by
the Fund in accordance with the Declaration of Trust, as now in effect or as it
may be amended, next after the order is accepted by you.
7. Suspension of Sales. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Class B Shares shall be accepted by you except unconditional orders placed
with you before you had knowledge of the suspension. In addition, the Fund
reserves the right to suspend sales and your authority to accept orders for
Class B Shares on behalf of the Fund if, in the judgment of the Fund, it is in
the best interests of the Fund to do so, such suspension to continue for such
period as may be determined by the Fund; and in that event, no Class B Shares
will be sold by you on behalf of the Fund while such suspension remains in
effect except for Class B Shares necessary to cover unconditional orders
accepted by you before you had knowledge of the suspension.
8. Suspension, Termination or Limitation of Portfolios. You acknowledge
that the Fund may, at any time such action is deemed desirable, suspend or
terminate sales of Class B Shares of a Portfolio and that upon your receipt of
notice of such action by the Fund you will, for such period as determined by the
Fund, accept no further orders for Class B Shares of that Portfolio except
unconditional orders placed with you before you had knowledge of such action.
You acknowledge further that the Fund may from time to time set upper and lower
limits on the number of Class B Shares of a Portfolio for which a purchaser may
subscribe and may limit sales of Class B Shares of a Portfolio to their existing
shareholders.
9. Portfolio Transactions. Securities may be bought or sold for the Fund
by or through you and you may participate directly or indirectly in brokerage
commissions or "spread" in respect of transactions in securities of the Fund;
provided, however, that all sums of money received by you as a result of such
purchases and sales or as a result of such participation must, after
reimbursement of your actual expenses in connection with such activity, be paid
over by you to or for the benefit of the Fund.
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10. Expenses.
(a) The Fund shall pay or arrange for the payment of all fees and
expenses:
(1) in connection with the preparation, setting in type and
filing of any registration statement and prospectus under the
Securities Act and/or the Investment Company Act, and any
amendments or supplements thereto that may be made from time to
time;
(2) in connection with the registration and qualification of
Class B Shares for sale in the various jurisdictions in which the
Fund shall determine it advisable to qualify such Class B Shares
for sale (including registering the Fund as a broker or dealer or
any officer of the Fund or other person as agent or salesman of
the Fund in any state);
(3) of preparing, setting in type, printing and mailing any
notice, proxy statement, report, prospectus or other
communication to Class B shareholders of the Fund in their
capacity as such;
(4) of preparing, setting in type, printing and mailing
prospectuses annually to existing Class B shareholders;
(5) in connection with the issue and transfer of Class B Shares
resulting from the acceptance by you of orders to purchase Class
B Shares placed with you by investors, including the expenses of
printing and mailing confirmations of such purchase orders and
the expenses of printing and mailing a prospectus included with
the confirmation of such orders;
(6) of any issue taxes or any initial transfer taxes;
(7) of that portion of WATS (or equivalent) telephone lines other
than the portion allocated to you in this paragraph 10;
(8) of wiring funds in payment of Class B Share purchases or in
satisfaction of redemption or repurchase requests, unless such
expenses are paid for by the investor or shareholder who
initiates the transaction;
(9) of that portion of the cost of printing business reply
envelopes allocated to the Fund on the basis of use by existing
shareholders to place redemption requests or to request
information;
(10) of postage for all business reply envelopes;
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(11) of that portion of one or more CRT terminals connected with
the computer facilities of the transfer agent and used by the
Fund to gain access to its shareholder records, allocated on the
basis of such use;
(12) permitted to be paid or assumed by the Fund pursuant to a
plan ("12b-1 Plan") adopted by the Fund in conformity with the
requirements of Rule 12b-1 under the Investment Company Act
("Rule 12b-1") or any successor rule, notwithstanding any other
provision to the contrary herein; and
(13) not specifically allocated to you hereunder.
(b) You shall pay or arrange for the payment of all fees and
expenses, subject to the Fund reimbursing you for such fees and
expenses as may be permitted by the Fund pursuant to the Rule 12b-1
Plan in effect for the Class B Shares:
(1) of printing and distributing any prospectuses or reports
prepared for your use in connection with the offering of Class B
Shares to the public;
(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of Class B
Shares to the public;
(3) of advertising in connection with the offering of Class B
Shares to the public;
(4) incurred in connection with your registration as a broker or
dealer or the registration or qualification of your officers,
directors, agents or representatives under Federal and state
laws;
(5) of that portion of WATS (or equivalent) telephone lines,
allocated to you on the basis of use by investors (but not
shareholders) who request information about or prospectuses of
the Fund;
(6) of that portion of printing business reply envelopes,
allocated to you on the basis of use by investors and
shareholders to purchase Class B Shares; and
(7) of any activity which is primarily intended to result in the
sale of Class B shares issued by the Fund.
Expenses which are to be allocated between you and the Fund shall be
allocated pursuant to reasonable procedures or formulae mutually agreed upon,
which procedures or formulae shall to the extent practicable reflect studies of
relevant empirical data.
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11. Selected Dealers. In connection with the offering of shares to the
separate accounts of life insurance companies, or to the extent that the offer
of variable life insurance policies and variable annuity contracts the premiums
for which are allocated to such separate accounts which invest in Class B Shares
may be deemed to include an offer of Class B Shares, you may enter into
agreements with other broker-dealers registered under the Securities Exchange
Act of 1934, as amended, provided that any such agreement shall be subject to
the approval of the Trustees of the Fund.
12. Conformity with Law. You agree that in selling Class B Shares you
will duly conform in all respects with the laws of the United States and any
jurisdiction in which such Class B Shares may be offered for sale by you
pursuant to this Agreement and to the rules and regulations of the National
Association of Securities Dealers, Inc., of which you are a member.
13. Independent Contractor. You shall be an independent contractor and
neither you nor any of your officers or employees is or shall be an employee of
the Fund in the performance of your duties hereunder. You shall be responsible
for your own conduct and the employment, control and conduct of your agents and
employees and for injury to such agents or employees or to others through your
agents or employees. You assume full responsibility for your agents or employees
under applicable statutes and agree to pay all employee taxes thereunder.
14. Services Not Exclusive. Except to the extent necessary to perform
your obligations hereunder, nothing herein shall be deemed to limit or restrict
your right or that of any of your affiliates or employees, including any of your
employees who may also be a Trustee, officer or employee of the Fund, to engage
in any other business or to devote time and attention to the distribution or
other related aspects of any other registered investment company or to render
services of any kind to any other corporation, firm, individual or association.
15. Indemnification. You agree to indemnify and hold harmless the Fund
and each of its Trustees and officers and each person, if any, who controls the
Fund within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages, liabilities or litigation (including legal and other
expenses) to which the Fund or such Trustees, officers or controlling person may
become subject under such Act, under any other statute, at common law or
otherwise, arising out of the acquisition of any Shares by any person which (i)
may be based upon any wrongful act by you or any of your employees or
representatives, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement or
prospectus covering Shares or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such a statement or omission was made in reliance upon information furnished to
the Fund by you, or (iii) may be incurred or arise by reason of your acting as
the Fund's agent instead of purchasing and reselling Shares as
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principal in distributing Shares to the public, provided, however, that in no
case (i) is your indemnity in favor of a Trustee or officer or any other person
deemed to protect such Trustee or officer or other person against any liability
to which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his duties or
by reason of his reckless disregard of obligations and duties under this
Agreement or (ii) are you to be liable under your indemnity agreement contained
in this paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or such person, as the case may be, shall have
notified you in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claims shall have
been served upon the Fund or upon such person (or after the Fund or such person
shall have received notice of such service on any designated agent), but failure
to notify you of any such claim shall not relieve you from any liability which
you have to the Fund or any person against whom such action is brought otherwise
than on account of your indemnity agreement contained in this paragraph. You
shall be entitled to participate, at your own expense, in the defense, or, if
you so elect, to assume the defense of any suit brought to enforce any such
liability, but, if you elect to assume the defense, such defense shall be
conducted by counsel chosen by you and satisfactory to the Fund, to its officers
and Trustees, or to any controlling person or persons, defendant or defendants
in the suit. In the event that you elect to assume the defense of any such suit
and retain such counsel, the Fund, such officers and Trustees or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them, but, in case you do not
elect to assume the defense of any such suit, you will reimburse the Fund, such
officers and Trustees or controlling person or persons, defendant or defendants
in such suit, for the reasonable fees and expenses of any counsel retained by
them. You agree promptly to notify the Fund of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any Shares.
The Fund agrees to indemnify and hold harmless you and each of your
directors and officers and each person, if any, who controls you within the
meaning of Section 15 of the Securities Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
you or such directors, officers or controlling person may become subject under
such Act, under any other statute, at common law or otherwise, arising out of
the acquisition of any Shares by any person which (i) may be based upon any
wrongful act by the Fund or any of its employees or representatives, or (ii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement or prospectus covering Shares or any
amendment thereof or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statements or omission was made in
reliance upon information furnished to you by the Fund; provided, however, that
in no case (i) is the Fund's indemnity in favor of a director or officer or any
other person deemed to protect such director or officer or other person against
any liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties under
this
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Agreement or (ii) is the Fund to be liable under its indemnity agreement
contained in this paragraph with respect to any claims made against you or any
such director, officer or controlling person unless you or such director,
officer or controlling person, as the case may be, shall have notified the Fund
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon you or upon such director, officer or controlling person (or after you or
such director, officer or controlling person shall have received notice of such
service on any designated agent), but failure to notify the Fund of any claim
shall not relieve it from any liability which it may have to the person against
whom such action is brought otherwise than on account of its indemnity agreement
contained in this paragraph. The Fund will 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 such liability, but if the Fund elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to you, its directors, officers or controlling person or persons,
defendant or defendants, in the suit. In the event the Fund elects to assume the
defense of any such suit and retain such counsel, you, your directors, officers
or controlling person or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel retained by them, but, in
case the Fund does not elect to assume the defense of any such suit, it will
reimburse you or such directors, officers or controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and expenses of any
counsel retained by them. The Fund agrees promptly to notify you 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 Shares.
16. Authorized Representations. The Fund is not authorized to give any
information or to make any representations on behalf of you other than the
information and representations contained in a registration statement or
prospectus covering Class B Shares, as such registration statement and
prospectus may be amended or supplemented from time to time, or reports prepared
for distribution to shareholders of the Fund. You are not authorized to give any
information or to make any representations on behalf of the Fund in connection
with the sale of Class B Shares other than the information and representations
contained in a registration statement or prospectus covering Class B Shares, as
such registration statement and prospectus may be amended or supplemented from
time to time, or reports prepared for distribution to shareholders of the Fund.
17. Duration and Termination of the Agreement. This Agreement shall
become effective upon the effective date of the Fund's post-effective amendment
to its registration statement under Securities Act for Class B Shares and,
unless sooner terminated as provided herein, will remain in effect until
September 30, 1999 and from year to year thereafter, but only so long as such
continuance is specifically approved at least annually by the vote of a majority
of the Trustees of the Fund who are not interested persons of you or of the
Fund, cast in person at a meeting called for the purpose of voting on such
approval, and by vote of the Trustees or of a majority of the outstanding voting
securities of the Fund. This Agreement may, on 60 days' written notice, be
terminated at any time, without the payment of any penalty, by the Trustees, by
a vote of a majority of the
8
outstanding voting securities of Class B Shares of the Fund, or by you. This
Agreement will automatically terminate in the event of its assignment. In
interpreting the provisions of this paragraph 17, the definitions contained in
Section 2(a) of the Investment Company Act (particularly the definitions of
"interested person," "assignment" and "majority of the outstanding voting
securities"), shall be applied.
18. Amendment of this Agreement. No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. If the Fund should at any time deem it
necessary or advisable in the best interests of the Fund that any amendment of
this Agreement be made in order to comply with the recommendations or
requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under state or federal tax laws and should
notify you of the form of such amendment, and the reasons therefor, and if you
should decline to assent to such amendment, the Fund may terminate this
Agreement forthwith. If you should at any time request that a change be made in
the Fund's Declaration of Trust or By-laws or in the Fund's methods of doing
business, in order to comply with any requirements of federal law or regulations
of the Securities and Exchange Commission or of a national securities
association of which you are or may be a member relating to the sale of Class B
Shares, and the Fund should not make such necessary change within a reasonable
time, you may terminate this Agreement forthwith.
19. Miscellaneous. The captions in this Agreement are included for the
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The name "Xxxxxxx Variable Life Investment Fund" is
the designation of the Trustees for the time being under a Declaration of Trust
dated December 11, 1997, and all persons dealing with the Fund must look solely
to the property of the Fund for the enforcement of any claims against the Fund
as neither the Trustees, officers, employees, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Fund, nor shall
resort be had to their private property for the satisfaction of any obligation
or claim or otherwise in connection with the affairs of the Fund.
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If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Fund, whereupon this letter shall become a binding contract.
Yours very truly,
XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By: /s/ Xxxxxx X. XxXxxxxxx
---------------------------
Xxxxxx X. XxXxxxxxx
Vice President
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX INVESTOR SERVICES, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
Vice President
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