EXHIBIT 5(A)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made this 1/st/ day of January, 1999, by and
between Xxxxxxx Insurance Funds, a Massachusetts business trust ("Investment
Company"), and Xxxxxxx Fund Distributors, Inc., a Washington corporation
("Distributor").
WHEREAS, the Investment Company is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and offers for sale district series of shares of
common stock, each corresponding to a distinct portfolio ("Fund"), currently
four;
WHEREAS, Xxxxxxx Fund Distributors, Inc. is registered as a mutual fund broker-
dealer with appropriate regulatory agencies;
WHEREAS, the Investment Company intends to serve as a funding vehicle for
variable annuity contracts and variable life insurance policies to be offered by
the separate accounts of certain life insurance companies;
WHEREAS, the Investment Company wishes to retain Distributor as the Investment
Company's distributor in connection with the offering and sale of the shares of
Funds as now exist and as hereafter may be established ("Shares") and to furnish
certain other services to the Investment Company as specified in this Agreement;
and
WHEREAS, Distributor is willing to furnish such services on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, it is agreed between the parties hereto as follows:
1. The Investment Company hereby appoints Distributor to perform those
services described in this Agreement for each Fund of the Investment
Company in existence as of the date hereof ("Initial Funds"). In the event
that the Investment Company establishes one or more series of shares other
than the Initial Funds with respect to which it desires to retain the
Distributor to serve as distributor and principal underwriter hereunder, it
shall so notify the Distributor in writing, indicating the fee, if any, to
be payable with respect to the additional series of
shares. If the Distributor is willing to render such services, it shall so
notify the Investment Company in writing, whereupon such series of shares
shall become a Fund hereunder. In such event a writing signed by both the
Investment Company and the Distributor shall be annexed hereto as a part
hereof indicating that such additional series of shares has become a Fund
hereunder.
2. The Investment Company authorizes Distributor as agent for the Investment
Company, subject to applicable federal and state law and the Master Trust
Agreement, Bylaws and current Prospectus and Statement of Additional
Information of the Investment Company: (a) to promote and offer each Fund
and the Investment Company; (b) to solicit orders for the purchase of the
Shares of each Fund subject to such terms and conditions as the Investment
Company may specify; and (c) to accept orders for the purchase of the
Shares of each Fund on behalf of the Investment Company. Distributor shall
offer the Shares of each Fund on an agency or "best efforts" basis under
which the Investment Company shall only issue such Shares as are actually
sold.
In connection with such sales and offers of sale, the Investment Company
shall not be responsible in any way for any other information, statements
or representations given or made by Distributor or its representatives or
agents, except such information or representations as are contained in the
Prospectus or in information furnished in writing to Distributor by the
Investment Company.
3. The offering price of the Shares shall be the net asset value per share (as
determined by the Investment Company) of the outstanding Shares of the
Investment Company plus a sales charge (if any) and a shareholder services
charge (if any) as set forth in the Investment Company's current
Prospectus. The Investment Company shall make available to Distributor a
statement of each computation of net asset value and of the details
entering into such computation.
4. As used in this Agreement, the term "Registration Statement" shall mean the
Registration Statement most recently filed by the Investment Company with
the Securities and Exchange Commission and effective under the Securities
Act of 1933, as such Registration Statement is amended by any amendments
thereto at the time in effect, and the terms "Prospectus" and "Statement of
Additional Information" shall mean the form of Prospectus and Statement of
Additional Information filed by the Investment Company as part of the
Registration Statement.
5. The Investment Company agrees, at its own expense, to register the Shares
with the Securities and Exchange Commission, state and other regulatory
bodies, and to prepare and file from time to time such Prospectuses,
amendments, reports and other documents as may be necessary to maintain the
Registration Statement. The Investment Company shall bear all expenses
related to preparing and typesetting such Prospectuses, Statements of
Additional Information and other materials
required by law and such other expenses, including printing and mailing
expenses, related to the Investment Company's communications with persons
who are shareholders of each Fund of the Investment Company.
6. The Investment Company agrees to indemnify, defend and hold harmless
Distributor, each person who has been, is, or may hereafter be an officer,
director, or employee or agent of Distributor, and any person who controls
Distributor within the meaning of Section 15 of the 1933 Act from and
against any and all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which Distributor,
its officers or Directors, or any such controlling person may incur under
the 1933 Act or under common law which arises out of or is alleged to arise
out of or is based upon a violation of any of the terms of this Agreement
or otherwise arising out of or based upon any alleged untrue statement of a
material fact contained in the Registration Statement, Prospectuses or
Statement of Additional Information or arising out of or based upon any
alleged omission to state a material fact required to be stated in said
documents or necessary to make the statements in said documents not
misleading, provided that in no event shall anything contained in this
Agreement be construed so as to protect Distributor against any liability
to the Investment Company or its shareholders to which Distributor would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
7. Distributor agrees to indemnify, defend and hold harmless the Investment
Company, each person who has been, is, or may hereafter be an officer,
director, or employee or agent of Distributor, and any person who controls
the Investment Company within the meaning of Section 15 of the 1933 Act
from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which
the Investment Company, its officers or Trustees, or any such controlling
person may incur under the 1933 Act or under common law which arises out of
or is alleged to arise out of or is based upon a violation of any of the
terms of this Agreement or otherwise arising out of or based upon any
alleged untrue statement of a material fact contained in information
furnished in writing by Distributor to the Investment Company for use in
the Registration Statement, Prospectuses or Statements of Additional
Information or arising out of or based upon any alleged omission to state a
material fact in connection with such information required to be stated in
the Registration Statement, Prospectuses or Statement of Additional
Information, or necessary to make such information not misleading.
8. The Investment Company reserves the right at any time to withdraw all
offerings of the Shares by written notice to the Distributor at its
principal office.
9. Distributor at its sole discretion may repurchase Shares offered for sale
by the shareholders. Repurchase of Shares by Distributor shall be at the
net asset value next determined after a repurchase order has been received.
On each business day, Distributor shall notify or shall arrange for
notification by telex, facsimile transmission, other electronic
transmission, or in writing the Investment Company's transfer agent of the
orders for repurchase of shares received by Distributor since the last such
report, the amount to be paid for such Shares, and the identity of
shareholders offering Shares for repurchase. Upon such notice, the
Investment Company shall pay Distributor such amounts as are required by
Distributor for the repurchase of such Shares in cash or in the form of a
credit against monies due the Investment Company from Distributor as
proceeds from the sale of Shares. Distributor will receive no commission or
other remuneration for repurchasing Shares. The Investment Company reserves
the right to suspend such repurchases upon written notice to Distributor.
Distributor further agrees to act as agent for the Investment Company to
receive and transmit promptly to the Investment Company's transfer agent
shareholder requests for redemption of Shares or to arrange for such
notification and transmission.
10. Distributor is an independent contractor and shall be agent for the
Investment Company only with respect to the sale and repurchase of the
Shares.
11. The services of Distributor to the Investment Company under this Agreement
are not to be deemed exclusive, and the Distributor shall be free to render
similar services or other services to others so long as its services
hereunder are not impaired thereby.
12. Distributor shall prepare reports for the Board of Trustees of the
Investment Company upon request showing information concerning expenditures
related to this Agreement.
13. As used in this Agreement, the term "net asset value" shall have the
meaning ascribed to it in the Investment Company's Master Trust Agreement;
and the terms "assignment," "interested person," and "majority of the
outstanding voting securities" shall have the meanings given to them by
Section 2(a) of the 1940 Act, subject to such exemptions as may be granted
by the Securities and Exchange Commission by any rule, regulation or order.
14. This Agreement shall become effective (i) with respect to the Initial Funds
as of the date hereof; and (ii) with respect to each additional Fund on the
date which the additional Fund commences offering its shares to the public,
so long as the provisions of Section 1 have been complied with. The
Agreement shall continue in effect for each Fund for two years following
the effective date of this Agreement with respect to the Fund; and
thereafter only so long as its continuance is specifically approved at
least annually by a majority of the Trustees of the Investment Company who
are not parties to the Agreement or interested persons
of any such party cast in person at a meeting called for the purpose of
voting on such approval, or by vote of a majority of the outstanding voting
securities of the Fund.
15. This Agreement may be terminated at any time:
(a) By the Trustees of the Investment Company or by vote of a majority of
the outstanding voting securities of the Investment Company by sixty
days' notice addressed to the Distributor at its principal place of
business;
(b) By the Distributor by sixty days' written notice addressed to the
Investment Company at its principal place of business; and
(c) Immediately in the event of its assignment.
16. No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination
is sought, and no amendment of this Agreement shall be effective until
approved by vote of a majority of the Board of Trustees, by vote of a
majority of the Independent Trustees, or by vote of a majority of the
outstanding voting securities of such Fund affected by the amendment.
17. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall
not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
18. This Agreement shall be construed in accordance with the laws of the State
of Washington and any applicable federal law.
19. The Master Trust Agreement dated July 11, 1996, as amended from time to
time, establishing the Investment Company, which is hereby referred to and
a copy of which is on file with the Secretary of The Commonwealth of
Massachusetts, provides that the name Xxxxxxx Insurance Funds means the
Trustees from time to time serving (as Trustees but not personally) under
said Master Trust Agreement. It is expressly acknowledged and agreed that
the obligations of the Investment Company hereunder shall not be binding
upon any of the Shareholders, Trustees, officers, employees or agents of
the Investment Company, personally, but shall bind only the trust property
of the Investment Company, as provided in its Master Trust Agreement. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Investment Company and signed by an officer of the
Investment Company, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer 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 Investment
Company as provided in this Master Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized as of the date written above.
Attest: XXXXXXX INSURANCE FUNDS
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxx, Assistant Secretary Xxxx X. Xxxxxxxx, President
Attest: XXXXXXX FUND DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxx, Assistant Secretary Xxxx X. Xxxxxxx, President
