UNDERWRITING AGREEMENT
This Agreement made as of ____________ by and between Xxxxxxx MultiFund
Trust, a Massachusetts business trust (the "Trust"), and Xxxxxxx Securities,
Inc., a wholly-owned subsidiary of Xxxxxxx Capital Management, Inc., both
Minnesota corporations, ("Underwriter").
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "Act"); and
WHEREAS, Underwriter is a broker-dealer registered with the
Securities and Exchange Commission and a member of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, Underwriter wishes to serve as the principal underwriter of shares
of beneficial interest (the "Shares") of each series of shares of the Trust
(the "Series") and the Trust wants such an arrangement;
NOW, THEREFORE, in consideration of the promises and agreements of the
parties herein, the parties agree as follows:
1. APPOINTMENT.
The Trust appoints Underwriter as its exclusive agent for the
distribution of the Shares, and Underwriter accepts such appointment under the
terms of this Agreement. While this Agreement is in force, the Trust will not
sell any Shares except on the terms set forth in this Agreement. Despite any
other provision hereof, the Trust may end, suspend, or withdraw the offering
of Shares whenever, in its sole discretion, it deems such action to be
desirable.
2. SALES AND REPURCHASE OF SHARES.
(a) Underwriter will have the right, as agent for the Trust, to sell
Shares to the public against orders therefor at their net asset value.
(b) Underwriter will also have the right to take, as agent for the
Trust, all actions which, in Underwriter's judgment, are necessary to carry
into effect the distribution of the Shares.
(c) The net asset value of the Shares of each Series will be
determined in the manner provided in the Trust's Registration Statement, and
when determined will be applicable to transactions as provided for in the
Registration Statement. The net asset value of the Shares of each Series will
be calculated by the Trust or by another entity for the Trust. Underwriter
will have no duty to inquire into or liability for the accuracy of the net
asset value per Share as calculated.
(d) Underwriter will have the right, as agent for the Trust, to enter
into dealer agreements with underlying funds that sell shares to the Funds
with a Rule 12b-1 distribution plan fee or a service fee and to collect Rule
12b-1 and service fees from such mutual funds. Such fees will be shared
between Underwriter and the Trust according to Schedule A attached and
incorporated herein.
(e) When it receives purchase instructions, Underwriter will forward
such instructions to the Trust or its transfer agent for registration of the
account applications and payments to the Trust or its transfer agent for
further processing.
(f) On every sale, the Trust shall receive the applicable net asset
value of the Shares promptly, but in no event later than the tenth business
day following the date on which Underwriter shall have received an order for
the purchase of the Shares.
(g) Underwriter, as agent of and for the account of the Trust may
repurchase the Shares at such prices and upon such terms and conditions as
shall be specified in the Registration Statement.
3. SALE OF SHARES OF THE TRUST.
The Trust reserves the right to issue any Shares at any time directly
to the holders of Shares ("Shareholders"), to sell Shares to its Shareholders
or to other persons approved by Underwriter at not less than net asset value
and to issue Shares in exchange for substantially all the assets of any
corporation or trust or for the shares of any corporation or trust.
4. BASIS OF SALE OF SHARES.
(a) Underwriter does not agree to sell any specific number of Shares.
Underwriter, as agent for the Trust, undertakes to sell Shares on a best
efforts basis only against orders therefor.
5. RULES OF NASD, ETC.
(a) Underwriter will conform to the Rules of Fair
Practice of the NASD and the securities laws of any jurisdiction
in which it sells any Shares.
(b) Underwriter, at its own expense, will qualify as
a dealer or broker, or otherwise, under all applicable State or
federal laws required in order that Shares may be sold in such States as may
be mutually agreed upon by the parties.
(c) Underwriter shall not make, or permit any representative to make,
in connection with any sale of Shares, any representations concerning the
Shares except those contained in the then current prospectus and statement of
additional information covering the Shares and in printed information approved
by the Trust as information supplemental to such prospectus and statement of
additional information.
6. EXPENSES.
In the performance of its obligations under this Agreement,
Underwriter will pay the costs incurred in qualifying as a broker or dealer
under state and federal laws. Underwriter may be reimbursed for certain such
costs by the Funds, as described in the Registration Statement. All other
costs in connection with the offering of the Shares will be paid by the Trust
or Underwriter in accordance with agreements between them as permitted by
applicable law, including the Act and rules and regulations promulgated
thereunder.
7. INDEMNIFICATION OF TRUST.
Underwriter, to the extent of the net fees received by it from
underlying funds as described elsewhere herein but to no greater amount,
agrees to indemnify and hold harmless the Trust, and each person who has been,
is, or may hereafter be a trustee, officer, employee, shareholder or control
person of the Trust, against any loss, damage or expense (including the
reasonable costs of investigation) reasonably incurred by any of them in
connection with any claim or in connection with any action, suit or proceeding
to which any of them may be a party, which arises out of or is alleged to
arise out of or is based upon any untrue statement or alleged untrue statement
of a material fact, or the omission or alleged omission to state a material
fact necessary to make the statements not misleading, on the part of
Underwriter or any agent or employee of Underwriter or any other person for
whose acts Underwriter is responsible, unless such statement or omission was
made in reliance upon written information furnished by the Trust. Underwriter
likewise, to the extent of the net fees received by it from underlying funds
as described elsewhere herein but to no greater amount, agrees to indemnify
and hold harmless the Trust and each such person in connection with any claim
or in connection with any action, suit or proceeding which arises out of or is
alleged to arise out of Underwriter's failure to exercise reasonable care and
diligence with respect to its services, if any, rendered in connection with
investment, reinvestment, automatic withdrawal and other plans for Shares. The
term "expenses" for purposes of this and the next paragraph includes amounts
paid in satisfaction of judgments or in settlements which are made with
Underwriter's consent. The foregoing rights of indemnification shall be in
addition to any other rights to which the Trust or each such person may be
entitled as a matter of law.
8. INDEMNIFICATION OF UNDERWRITER.
Underwriter, its directors, officers, employees, shareholders and
control persons shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith, or gross negligence on the part
of any such persons in the performance of Underwriter's duties or from the
reckless disregard by any of such persons of Underwriter's obligations and
duties under this Agreement. The Trust will advance attorneys' fees and other
expenses incurred by any such person in defending a proceeding, upon the
undertaking by or on behalf of such person to repay the advance if it is
ultimately determined that such person is not entitled to indemnification. Any
person employed by Underwriter who may also be or become an officer or
employee of the Trust shall be deemed, when acting within the scope of his
employment by the Trust, to be acting in such employment solely for the Trust
and not as an employee or agent of Underwriter.
9. TERMINATION AND AMENDMENT OF THIS AGREEMENT.
This Agreement shall automatically terminate, without
the payment of any penalty, in the event of its assignment. This Agreement may
be amended only if such amendment is approved (i) by Underwriter, (ii) either
by action of the Board of Trustees of the Trust or by the affirmative vote of
a majority of the outstanding Shares, and (iii) by a majority of the Trustees
of the Trust who are not interested persons of the Trust or of Underwriter by
vote cast in person at a meeting called for the purpose of voting on such
approval.
Either the Trust or Underwriter may at any time terminate this
Agreement on sixty (60) days' written notice delivered or mailed by registered
mail, postage prepaid, to the other party.
10. EFFECTIVE PERIOD OF THE AGREEMENT.
This Agreement shall take effect upon its execution
and shall remain in full force and effect for a period of two (2) years from
the date of its execution (unless terminated automatically as set forth in
Section 9), and from year to year thereafter, subject to annual approval (i)
by Underwriter, (ii) either by action of the Board of Trustees of the Trust or
by the affirmative vote of a majority of the outstanding Shares, and (iii) by
a majority of the Trustees of the Trust who are not interested persons of the
Trust or of Underwriter by vote cast in person at a meeting called for the
purpose of voting on such approval.
11. LIMITATION ON LIABILITY.
The term "Xxxxxxx MultiFund Trust" means and refers to the Trustees
from time to time serving under the Trust's Declaration of Trust as the same
may subsequently thereto have been, or subsequently hereto be, amended. It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, Shareholders, nominees, officers, agents or
employees of the Trust, personally, but bind only the trust property of the
Trust, as provided in the Declaration of Trust of the Trust. The execution and
delivery of this Agreement have been authorized by the Trustees of the Trust
and signed by
the officers of the Trust, acting as such, and neither such authorization by
such Trustees nor such execution and delivery by such officers shall be deemed
to have been made by any of them individually or to impose any liability on
any of them personally, but shall bind only the trust property of the Trust as
provided in its Declaration of Trust.
12, NEW SERIES.
The terms and provisions of this Agreement shall become automatically
applicable to any additional series of the Trust established during the
initial or renewal term of this Agreement.
13. SUCCESSOR INVESTMENT COMPANY.
Unless this Agreement has been terminated in
accordance with Paragraph 9, the terms and provisions of this Agreement shall
become automatically applicable to any investment company which is a successor
to the Trust as a result of a reorganization, recapitalization or change of
domicile.
14. SEVERABILITY.
In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
15. QUESTIONS OF INTERPRETATION.
(a) This Agreement shall be governed by the laws of
the State of Minnesota.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or
provision of the Act shall be resolved by
reference to such term or provision of the Act and to interpretation thereof,
if any, by the United States courts or in the absence of any controlling
decision of any such court, by rules, regulations or orders of the Securities
and Exchange Commission issued pursuant to said Act. In addition, where the
effect of a requirement of the Act, reflected in any provision of this
Agreement is revised by rule, regulation or order of the Securities and
Exchange Commission, such provision shall be deemed to incorporate the effect
of such rule, regulation or order.
17. NOTICES.
Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt of such notice. Until further notice
to the other party, it is agreed that the address of the Trust and of
Underwriter for this purpose shall be 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxx, XX 00000.
IN WITNESS WHEREOF, the Trust and Underwriter have each caused this
Agreement to be signed in duplicate on its behalf, all as of the day and year
first above written.
ATTEST: XXXXXXX MULTIFUND TRUST
________________________________ By: __________________________
ATTEST: XXXXXXX SECURITIES, INC.
________________________________ By: __________________________
