DISTRIBUTION AGREEMENT
AGREEMENT, dated as of January 1, 1995, by and between The Xxxxxx River
Trust (the "Trust") and Equico Securities, Inc. ("Equico").
W I T N E S S E T H :
WHEREAS, the Trust is a Massachusetts business trust whose shareholders
are and will be separate accounts in unit investment trust form ("Eligible
Separate Accounts") of insurance companies;
WHEREAS, variable insurance and annuity product ("Variable Products")
net premiums, contributions and considerations will be allocated to Eligible
Separate Accounts for investment in the Trust;
WHEREAS, the Trust's shares may not be sold separately from the
Variable Products;
WHEREAS, the Trust desires Equico to undertake marketing activities
with respect to Trust shares;
WHEREAS, the Trust is registered as an open end investment company
under the Investment Company Act of 1940 ("Investment Company Act");
WHEREAS, the Investment Company Act prohibits any principal underwriter
for a registered open end investment company from offering for sale, selling, or
delivering after sale any security of which such company is the issuer, except
pursuant to a written contract with such company, and Equico will be a principal
underwriter for sale of securities issued by the Trust;
WHEREAS, Equico is registered as a broker-dealer under the Securities
Exchange Act of 1934 ("Securities Exchange Act") and is a member of the National
Association of Securities Dealers, Inc. ("NASD");
NOW THEREFORE, the Trust and Equico agree as follows:
Section 1. The Trust has ratified a Policy on Conflicts (the "Policy"),
which was adopted by the Board of Directors of the Xxxxxx River Fund, Inc.,
predecessor of the Trust. This Agreement shall be subject to the provisions of
the Policy, the terms of which are incorporated herein by reference, made a part
hereof and controlling. The Policy may be amended or superseded, without prior
notice, and this Agreement shall be deemed amended to the extent the Policy is
amended or superseded. Equico represents and warrants that it will act in a
manner consistent with such Policy as so set forth and as it may be amended or
superseded, so long as it is a principal underwriter of the Trust. This
provision shall survive the termination of this Agreement.
Section 2. Equico is hereby authorized, from time to time, to enter
into separate written agreements ("Sales Agreements" or, individually, a "Sales
Agreement"), on terms and conditions not inconsistent with this Agreement, with
insurance companies which have Eligible Separate Accounts and which agree to
participate in the
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distribution of Trust shares, directly or through affiliated broker dealers
(collectively, with the insurance companies the "Participating Insurance
Companies"), by means of distribution of Variable Products and to use their best
efforts to solicit applications for Variable Products. Equico may not enter into
any Sales Agreement with any Participating Insurance Company that is more
favorable than that maintained with any other Participating Insurance Company
and Eligible Separate Account, except that not all portfolios of the Trust need
be made available for investment by all Participating Insurance Companies,
Eligible Separate Accounts or Variable Products. Each Sales Agreement shall be
entered into jointly with the Participating Insurance Company and the Eligible
Separate Account.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly and
appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company shall,
when required by law, be both registered as a broker dealer under the Securities
Exchange Act and a member of the NASD. Each such Participating Insurance Company
shall agree to comply with all laws and regulations, whether federal or state,
and whether relating to insurance, securities or other general areas, including
but not limited to the record-keeping and sales supervision requirements of such
laws and regulations.
Section 4. The Trust's shares are divided into series, each
representing a different portfolio of investments ("Portfolios"). The Trust
Portfolios and any restrictions on availability relating thereto are set forth
in Schedule A hereto, which may be amended from time to time.
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Purchases and redemptions of Trust shares shall be at the net asset
value for the appropriate Portfolio, computed as set forth in the most recent
Prospectus and Statement of Additional Information relating to the Trust
contained in its Registration Statement of Form N-1A, File No. 2-94996, or any
amendments thereto (respectively, "Trust Prospectus" and "SAI"), and any
supplements thereto. Trust shares may not be sold or transferred except to an
Eligible Separate Account with the prior approval of the Trust's Board of
Trustees.
Section 5. The Trust shall not pay any compensation to Equico for
services as principal underwriter herein, nor shall the Trust reimburse Equico
for any expenses related to such services. Equico may, but need not, pay or
charge Participating Insurance Companies pursuant to agreements as described in
Section 2.
Section 6. The Trust represents to Equico that the Trust Prospectus and
SAI, as of their respective effective dates, contain all statements and
information which are required to be stated therein by the Securities Act of
1933 and in all respects conform to the requirements thereof, and neither the
Trust Prospectus nor the SAI include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
foregoing representations shall not apply to information contained in or omitted
from the Trust Prospectus and SAI in reliance upon, and in conformity with,
written information furnished by Equico specifically for use in the preparation
thereof.
In this connection, Equico acknowledges that the day-to-day operations
of the Trust, including without limitation, investment management, securities
brokerage
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allocation, cash control, accounting, record keeping and other administrative,
marketing and regulatory compliance functions, are carried on and may in the
future be carried on by The Equitable Life Assurance Society of the United
States ("Equitable"), affiliates of Equitable, and other parties unaffiliated
with Equitable on behalf of the Trust (collectively, the "Preparing Parties"),
under various agreements and arrangements, and that such activities in large
measure provide the basis upon which statements and information are included or
omitted from the Trust Prospectus and SAI. Equico further acknowledges that
because of the foregoing arrangements, the preparation of the Trust Prospectus
and SAI is substantially in the control of the Preparing Parties, subject to the
broad supervisory authority and responsibility of the Trust's Board of Trustees,
and that, essentially, the only Trust Prospectus or SAI information not
independently known to, or prepared by, the Preparing Parties is personal
information as to each Trustee's full name, age, background, business experience
and other personal information that may require disclosures under securities
laws and for which the Preparing Parties necessarily must rely on each such
Trustee to produce.
Section 7. The Trust will periodically prepare Trust Prospectuses
(and, if applicable, SAIs) and any supplements thereto, proxy materials and
annual and semi-annual reports (collectively, the "Documents") and shall make
camera ready copy available to Equico for reproduction by Equico or the
Participating Insurance Companies. Subject to the prior approval of the Trust's
officers, the Trust shall pay the cost of printing and mailing Documents which
are distributed to existing owners of Variable Products, provided that Equico or
the Participating Insurance Companies shall be required to submit documentation
in support of such expenses which is satisfactory to the officers of the Trust.
The Trust shall not pay the cost of printing or mailing Documents except as
specified in this Section 7. The Trust will use its best efforts
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to provide notice to Equico of anticipated filings or supplements. Equico or the
Participating Insurance Companies may alter the form of some or all of the
Documents, with the prior approval of the Trust's officers. Any preparation
costs associated with altering the form of the Documents will be borne by Equico
or the Participating Insurance Companies, not the Trust.
Section 8. Equico and officers of the Trust may from time to time
authorize descriptions of the Trust for use in sales literature or advertising
by the Participating Insurance Companies (including brochures, letters,
illustrations and other similar materials, whether transmitted directly to
potential applicants or published in print or audio-visual media), which
authorization will not be unreasonably withheld or delayed.
Section 9. Equico shall furnish to the Trust, at least quarterly,
reports as to the sales of Trust shares made pursuant to this Agreement. These
reports may be combined with any similar report prepared by Equico or any of the
Preparing Parties.
Section 10. Equico shall submit to all regulatory and administrative
bodies having jurisdiction over the operations of Equico, the Trust, or any
Participating Insurance Company, present or future, any information, reports or
other material which any such body by reason of this Agreement may request or
require as authorized by applicable laws or regulations.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the Securities Act of
1933 and the rules, regulations, and rulings thereunder and of the NASD, from
time to time in effect, including such exemptions from the Investment Company
Act and no action
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positions as the Securities and Exchange Commission or its staff may grant, and
the terms hereof shall be interpreted and construed in accordance therewith.
Without limiting the generality of the foregoing, (a) the term "assigned" shall
not include any transaction exempted from section 15(b)(2) of the Investment
Company Act and (b) the vote of the persons having voting rights in respect of
the Trust referred to in Section 12 shall be the affirmative votes of the lesser
of (i) the holders of more than 50% of all votes entitled to be cast in respect
of the Trust or (ii) the holders of at least 67% of the votes which are present
at a meeting of such persons if the holders of more than 50% of all votes
entitled to be cast in respect of the Trust are present or represented by proxy
at such meeting, in either case voted in accordance with the provisions of the
Policy.
Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of the
Trustees of the Trust who are not interested persons of the Trust or Equico and
by (a) persons having voting rights in respect of the Trust, by the vote stated
in Section 11, voted in accordance with the provisions of the Policy, or (b) the
Board of Trustees of the Trust.
Section 13. This Agreement shall terminate automatically if it shall be
assigned.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE XXXXXX RIVER TRUST
Attest:
/s/[Illegible] By: /s/ Xxxxxxx Xxxxxxxx
------------------ ----------------------
EQUICO SECURITIES, INC.
Attest:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. XxXxxxx
------------------ ----------------------
President and Chief Operating Officer
FFR_1.DOC/20007
1/11/95
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Schedule A
Portfolios of The Xxxxxx River Trust
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Common Stock
Money Market
Balanced
Aggressive Stock
High Yield
Global
Conservative Investors
Growth Investors
Government Securities
Quality Bond
Growth and Income
Equity Index
International (as of second quarter of 1995)
Restrictions
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None
20007
1/11/95
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