Exhibit e.3.
UNDERWRITING AGREEMENT BETWEEN
XXXXXX ADVISORS TRUST AND LIBERTY FUNDS DISTRIBUTOR, INC.
THIS UNDERWRITING AGREEMENT ("Agreement"), is hereby made by and between
Xxxxxx Advisors Trust, a business trust organized and existing under the laws of
the Commonwealth of Massachusetts (hereinafter called the "Fund"), and Liberty
Funds Distributor, Inc., a corporation organized and existing under the laws of
the Commonwealth of Massachusetts (hereinafter called the "Distributor").
WITNESSETH:
WHEREAS, the Fund is an open-end investment company registered under the
Investment Company Act of 1940 (the "1940 Act"), the shares of beneficial
interest ("Shares") of which are registered under the Securities Act of 1933
(the "1933 Act"); and
WHEREAS, the Fund has agreed to sell its shares to certain qualified
retirement plans ("Plans") and to the separate accounts ("Separate Accounts") of
various insurance companies investing in the Fund pursuant to a Participation
Agreement in order to fund such Separate Accounts (the "Participating Insurance
Companies") and certain variable life insurance policies and variable annuity
contracts (the "Contracts") issued by such insurance companies; and
WHEREAS, the Distributor is a broker-dealer registered under the Securities
Exchange Act of 1934 (the "1934 Act") and is a member of the National
Association of Securities Dealers, Inc. (the "NASD") and the Securities Investor
Protection Corporation; and
WHEREAS, the Distributor is able and willing to serve as the principal
underwriter for sales of the Fund's shares to Plans and certain Separate
Accounts maintained by Participating Insurance Companies in connection with the
sale of the Contracts written by such entities; and
WHEREAS, the Fund desires to appoint the Distributor as the principal
underwriter for the Fund's shares that the Fund will sell to Plans and to
Separate Accounts for the purpose of funding Contracts and any other variable
insurance products issued by Participating Insurance Companies funded through
their Separate Accounts under a Participation Agreement facilitated by the
Distributor, and the Distributor is willing to accept such appointment.
WHEREAS, Liberty Xxxxxx Asset Management, L.P. ("Liberty WAM"), investment
adviser to the Fund, or its affiliates, may pay expenses incurred in the sale
and promotion of the Fund except as provided in any 12b-1 plan adopted by the
Fund; and
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties as follows:
1. The Fund hereby appoints the Distributor as a principal underwriter and
distributor for the Fund, on the terms and conditions herein provided, to sell
its shares to the Separate Accounts of Participating Insurance Companies, under
Participation Agreements facilitated by the Distributor, and to the Plans in
jurisdictions wherein shares of the Fund may legally be offered to the Plans and
Separate Accounts for sale, it being understood that the Fund in its absolute
discretion may issue or sell shares directly to holders of shares of the Fund
upon
such terms and conditions and for such consideration, if any, as it may
determine, whether in connection with the distribution of subscription or
purchase rights, the payment or reinvestment of dividends or distributions, or
otherwise. The Distributor shall act solely as a disclosed agent on behalf of
and for account of the Fund. The Fund or its transfer agent shall receive
directly from the Separate Accounts or Plans all payments for purchase of shares
of the Fund, and shall pay directly to the Plans and Separate Accounts all
amounts due them upon redemption of such shares, and the Distributor shall have
no liability for the payment for purchase of shares of the Fund which it sells
as agent.
2. The Distributor hereby accepts its appointment as a principal
underwriter and distributor for the Fund's shares with respect to the
transactions contemplated by Section 1 above. The Distributor shall be subject
to the direction and control of the Fund in the sale of its shares and shall not
be obligated to sell any specific number of shares of any Fund.
3. The Fund will use its best efforts to keep effectively registered under
the 1933 Act for sales herein contemplated such shares as the Distributor shall
reasonably request and as the Securities and Exchange Commission (the "SEC")
shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of shares whenever, in its sole discretion, it
deems such action to be desirable.
5. Shares of the Fund shall be sold, repurchased or redeemed at the
current net asset value per share as determined in the manner and at the times
as set forth in the current prospectus(es) for the Fund, without addition of
selling commission, sales load, or redemption charge. The Distributor will
receive no compensation from the Fund for the performance of its duties
hereunder, except as otherwise specifically provided.
6. The Distributor, or its agent, shall issue and deliver on behalf of the
Fund such confirmations of sales to the Plans and Separate Accounts made by the
Distributor as agent pursuant to this Agreement as may be required.
Certificates, if any, shall be issued or shares registered on the record books
of the Fund or its transfer or similar agent in such names and denominations as
the Distributor may specify.
7. The Fund will furnish to the Distributor from time to time such
information with respect to the Fund and its shares as the Distributor may
reasonably request for use in connection with the sale and distribution of
shares of the Fund. The Fund will furnish to the Distributor in reasonable
quantities, upon request by the Distributor, copies of annual and interim
reports of the Fund.
8. The Distributor will not use, distribute, or disseminate or authorize
the use, distribution, or dissemination, in connection with the sale and
distribution of shares of the Fund, any statements other than those contained in
the Fund's current registration statement, except such supplemental literature
or advertising as shall be lawful under federal and any state securities laws
and regulations. The Distributor will furnish the Fund with copies of all
material containing such statements. Neither the Distributor nor any other
person is authorized by the Fund to give any information or to make any
representations, other than those contained in the
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registration statement (or related prospectus(es) or statement(s) of additional
information), or any advertising or sales literature authorized by reasonable
officers of the Fund. The Distributor shall cause any sales literature,
advertising, or other similar materials to be filed with and reviewed by the
NASD, the SEC, or any other required securities regulatory body, as appropriate.
9. The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of shares of each series of shares of the
Fund for sale under the federal securities laws and file any notices relating to
the sale of Shares required by applicable state law or regulation as the
Distributor may reasonably request. The Fund shall promptly notify the
Distributor if the registration under Federal securities laws, is suspended or
terminated, or if any governmental body or agency institutes proceedings to
terminate the offer and sale of any Fund shares in any jurisdiction.
10. The Distributor shall order shares of the Fund from the Fund only to
the extent that it shall have received purchase orders therefor. The
Distributor will not make any short sales of shares of the Fund.
11. In selling or re-acquiring shares of the Fund the Distributor will in
all respects conform with applicable federal and state laws and the rules and
regulations of the NASD. The Distributor will observe and be bound by all the
provisions of the Fund's Agreement and Declaration of Trust (and of any
fundamental policies adopted by the Fund pursuant to the 1940 Act, written
notice of which shall have been given to the Distributor) which at the time in
any way require, limit, restrict or prohibit or otherwise regulate any action on
the part of the Distributor.
12. The Distributor will conform to the provisions hereof and the
registration statement at the time in effect under the 1933 Act and 1940 Act
with respect to the Fund and the Fund's shares, and the Distributor shall not
withhold the placing of purchase orders so as to make a profit thereby.
13. The Fund will pay or cause to be paid expenses (including the fees and
disbursements of its own counsel) and all taxes and fees payable to any federal,
state, or other governmental agencies on account of the registration or
qualifications of securities issued by the Fund or otherwise. The Fund will
also pay or cause to be paid expenses incident to the issuance of shares of
beneficial interest, such as the cost of share certificates, issue taxes, and
fees of the transfer agent. The Distributor will pay all expenses in connection
with its own operations. All other expenses related hereto shall be borne by
the Fund or parties related to the Fund.
14. The Distributor, or its agent, shall maintain all books and records
required by the 1934 Act and rules thereunder with respect to purchase,
redemption, or repurchase of Fund shares underwritten by the Distributor. All
books and records required to be maintained by this paragraph shall be
maintained and preserved in conformity with the requirements of Rule 17a-3 and
17a-4 under the 1934 Act, be and remain the property of the Distributor, and be
at all times subject to inspection by the SEC in accordance with Section 17(a)
of the 1934 Act. The Distributor shall itself maintain the books and records
relating to the Distributor's general assets and liabilities or financial
statements, the computation of its aggregate indebtedness or net
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capital, employment records or any other records not specifically relating to
particular purchases, redemptions, or repurchases of Fund shares.
15. The Distributor shall be an independent contractor with respect to the
Fund and nothing herein contained shall constitute the Distributor, its agents
or representatives, or any employee thereof as employees of the Fund in
connection with sale of shares of the Fund. The Distributor is responsible for
its own conduct and the employment, control and conduct of its agents,
representatives, or employees. The Distributor assumes full responsibility for
its agents, representatives, and employees under applicable statutes and agrees
to pay all applicable employer taxes.
16. The Distributor shall indemnify and hold harmless the Fund and each of
its directors and officers (or former officers and directors) and each person,
if any, who controls the Fund (collectively, "Indemnitees") against any loss,
liability, claim, damage, or expense (including the reasonable cost of
investigating and defending against the same and any counsel fees reasonably
incurred in connection therewith) incurred by any Indemnitees under the 1933 Act
or under common law or otherwise which arise out of or are based upon (1) any
untrue or alleged untrue statement of a material fact contained in information
furnished by the Distributor to the Fund for use in the Fund's registration
statement, prospectus(es) and statement(s) of additional information or any
supplements thereto (hereinafter collectively referred to as the "prospectus,"
unless otherwise noted), or annual or interim reports to shareholders, (2) any
omission or alleged omission to state a material fact in connection with such
information furnished by the Distributor to the Fund which such information
furnished by the Distributor to the Fund which is required to be stated in any
of such documents or necessary to make such information not misleading, (3) any
misrepresentation or omission or alleged misrepresentation or omission to state
a material fact on the part of the Distributor or any agent or employee of the
Distributor or any other person for whose acts the Distributor is responsible,
unless such misrepresentation or omission or alleged misrepresentation or
omission was made in reliance on written information furnished by the Fund, (4)
any untrue or alleged untrue statement of a material fact, any omission or
alleged omission to state a material fact, or any other misrepresentation or
omission or alleged omission to state a material fact, on the part of the
Distributor or any agent or employee of the Distributor or any other person for
whose acts the Distributor is responsible, contained in or incorporated into any
sales literature or similar materials prepared by the Distributor or any such
agent or employee of the Distributor unless such misrepresentation or omission
or alleged misrepresentation or omission was made in reliance on written
information furnished by the Fund, or (5) the willful misconduct or failure to
exercise reasonable care and diligence on the part of any such persons
enumerated in clauses (3) and (4) of this Section 16 with respect to services
rendered under this Agreement. This indemnity provision, however, shall not
operate to protect any officer or Trustee of the Fund from any liability to the
Fund or any shareholder by reason or willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
officer of such officer or Trustee.
In case any action shall be brought against any Indemnitee, the Distributor
shall not be liable under its indemnity agreement contained in this Section with
respect to any claim made against any Indemnitee, unless the Indemnitee shall
have notified the Distributor in writing within a reasonable time after the
summons or other first legal process giving information of the
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nature of the claim that shall have been served upon the Indemnitee (or after
the Indemnitee shall have received notice of such service on any designated
agent). Failure to notify the Distributor of any such claim shall not relieve it
from 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
Section. The Distributor 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 Distributor elects to assume the defense,
such defense shall be conducted by counsel chosen by it and satisfactory to the
Indemnitees which are defendants in the suit. In the event the Distributor
elects to assume the defense of any such suit and retain such counsel, the
Indemnitees which are defendants in the suit shall bear the fees and expenses of
any additional counsel retained by them, but, in case the Distributor does not
elect to assume the defense of any such suit, the Distributor will reimburse the
Indemnitees which are defendants in the suit for the reasonable fees and
expenses of any counsel retained by them.
The Distributor shall promptly notify the Fund of the commencement of any
litigation or proceedings in connection with the issuance or sale of the shares.
The Fund will indemnify and hold harmless the Distributor against any loss,
liability, claim, damage or expense, to which the Distributor may become subject
insofar as such loss, liability, claim, damage or expense (or action in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of material fact contained in the Fund's registration statement (or related
prospectus) or arise out of or are based upon 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; and will reimburse the Distributor
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability, or
action; provided, however, that the Fund shall not be liable in any such case to
the extent that any such loss, claim, damage, liability, or action arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Fund's prospectus in reliance upon and in
conformity with written information furnished by the Distributor specifically
for use in the preparation thereof.
The Fund shall not indemnify the Distributor for any action where a
participant in a Plan or a purchaser of the Contracts was not furnished or sent
or given, at or prior to written confirmation of the sale of the Contracts, a
copy of the then current prospectus for the Fund.
17. This Agreement shall become effective at the Effective Time as defined
in the Agreement and Plan of Merger among Xxxxxx Asset Management, Ltd., Xxxxxx
Asset Management, L.P. and Liberty Financial Companies, Inc. and WAM Acquisition
L.P. dated as of June 9, 2000 (the "Merger Agreement"). After this Agreement is
effective, it shall continue in effect until the second anniversary of the
Effective Date (as defined in the Merger Agreement), and from year to year
thereafter, but only so long as such continuance is specifically approved in the
manner required by the 1940 Act. Either party hereto may terminate this
Agreement without payment of any penalty on any date by giving the other party
at least six months prior written notice of such termination specifying the date
fixed therefor. Without prejudice to any other remedies of the Fund, in any
such event the Fund may terminate this Agreement at any time immediately upon
any failure of fulfillment of any of the obligations of the Distributor
hereunder.
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18. This Agreement shall automatically terminate in the event of its
assignment. Without limiting the generality of the foregoing, the term
"assignment" when used in this Agreement, shall have the meaning specified in
the 1940 Act and the rules thereunder.
19. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at its principal
executive offices (or such other address as such other party may designate by
notice under this Section 19).
20. All parties hereto are expressly put on notice of the Fund's Agreement
and Declaration of Trust dated August 30, 1994, and any amendments thereto, all
of which are on file with the Secretary of the Commonwealth of Massachusetts,
and the limitation of shareholder and trustee liability contained therein. This
Agreement has been executed by and on behalf of the Fund by its representatives
as such representatives and not individually, and the obligations of the Fund
hereunder are not binding upon any of the Trustees, officers, employees, agents,
or shareholders of the Fund individually but are binding upon only the assets
and property of the Fund. With respect to any claim by the Distributor for
recovery of any liability of the Fund arising hereunder allocated to a
particular Series of the Fund if there be more than one (whether in accordance
with the express terms hereof or otherwise), the Distributor shall have recourse
solely against the assets of that Fund to satisfy such claim and shall have no
recourse against the assets of any other Fund for such purpose.
21. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and the applicable provisions of the 1940 Act and
rules thereunder. To the extent the applicable law of the Commonwealth of
Massachusetts or any provisions herein conflict with applicable provisions of
the 1940 Act or rules thereunder, the latter shall control.
IN WITNESS WHEREOF, the Fund and the Distributor have each caused this
Agreement to be executed as of effective date of this Agreement.
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XXXXXX ADVISORS TRUST
By: _______________________________
ATTEST:
Assistant Secretary
LIBERTY FUNDS DISTRIBUTOR, INC.
By: ______________________________
ATTEST:
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