XXXX XXXXXXX DECLARATION TRUST
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
July 22, 1996
Xxxx Xxxxxxx Funds, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Distribution Agreement
Dear Sir:
Xxxx Xxxxxxx Declaration Trust (the "Trust") has been organized as a business
trust under the laws of the Commonwealth of Massachusetts to engage in the
business of an investment company. The Trust's Board of Trustees 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) of the shares of beneficial
interest ("shares") of each series of the Trust, to offer the shares for sale to
Xxxx Xxxxxxx Variable Annuity Account J (a separate account of Xxxx Xxxxxxx
Variable Life Insurance Company), to other insurance company separate accounts
and certain other qualified investors (collectively, the "Eligible Purchasers")
at net asset value in accordance with the prospectus and statement of additional
information then in effect.
The Trust intends to offer shares in ten series designated as: Xxxx Xxxxxxx V.A.
Emerging Growth Xxxx, Xxxx Xxxxxxx V.A. Discovery Xxxx, Xxxx Xxxxxxx V.A.
International Xxxx, Xxxx Xxxxxxx V.A. 500 Index Xxxx, Xxxx Xxxxxxx V.A.
Independence Equity Xxxx, Xxxx Xxxxxxx V.A. Sovereign Investors Xxxx, Xxxx
Xxxxxxx V.A. Sovereign Bond Xxxx, Xxxx Xxxxxxx V.A. Strategic Income Xxxx, Xxxx
Xxxxxxx V.A. World Bond Fund and Xxxx Xxxxxxx V.A. Money Market Fund, together
with all other series subsequently established by the Trust and made subject to
this Agreement (each, a "Fund" and collectively, the "Funds"). You are willing,
as agent for the Trust, to sell the shares to Eligible Purchasers, in the manner
and on the conditions hereinafter set forth. Accordingly, the Trust hereby
agrees with you as follows:
1. Delivery of Documents. The Trust will furnish you promptly with copies,
properly certified or otherwise authenticated, of any registration statements
filed by it with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, (the "1933 Act") or the Investment Company Act of 1940, as
amended, (the "1940 Act") together with any financial statements and exhibits
included therein, and all amendments or supplements thereto hereafter filed.
2. Registration and Sale of Additional Shares. The Trust will use its best
efforts to register from time to time under the 1933 Act, if necessary, such
shares not already so registered as you may reasonably be expected to sell as
agent on behalf of the Trust. If necessary, you will cooperate with the Trust in
taking such action as may be required from time to time to effect and maintain
the registration of the Trust's shares under the 1933 Act, to qualify shares of
the Trust for sale in the Commonwealth of Massachusetts and in any other states
mutually agreeable to you and the Trust, and to maintain such qualification if
and so long as such shares are duly registered under the 1933 Act.
3. Solicitation of Orders. You will use your best efforts (but only in
states in which you may lawfully do so) to obtain from Eligible Purchasers
unconditional orders for shares authorized for issuance by the Trust and
registered under the 1933 Act provided that you may in your discretion refuse to
accept orders for such shares from any particular applicant.
4. Sale of Shares. Subject to the provisions of this Agreement, you are
authorized to sell as agent on behalf of the Trust, authorized and issued shares
registered under the 1933 Act. Such sales may be made by you on behalf of the
Trust by accepting unconditional orders to purchase such shares placed with
Eligible Purchasers. The sales price to Eligible Purchasers of such shares shall
be the net asset value as provided in Section 5 hereof.
Any right granted to you to accept orders for shares or make sales on behalf of
the Funds will not apply to shares issued in connection with the merger or
consolidation of any other investment company with any Fund or its acquisition,
by purchase or otherwise, of all or substantially all the assets of any
investment company or substantially all the outstanding shares of any such
company, and such right shall not apply to shares that may be offered or
otherwise issued by a Fund to shareholders by virtue of their being shareholders
of the Fund.
5. Share Price. All shares sold by you as agent for the Funds will be sold
at their net asset value, which will be determined in the manner provided in the
Funds' prospectuses or statement of additional information, as now in effect or
as they may be amended.
6. No Sales Discount. The respective Fund shall receive the applicable net
asset value on all sales of shares by you as agent of the Trust.
7. Transmission of Orders. No orders for the sale, redemption or
repurchase of the Funds' shares (nor payment for shares, in the case of a
purchase) shall be transmitted to you. Sales, redemptions and repurchases shall
be effected directly by the Funds' transfer agent according to the terms of the
Trust's transfer agency agreement. Also, payment for shares shall be transmitted
by the transfer agent directly to the Funds' custodian according to the terms of
the Trust's transfer agency agreement.
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8. Suspension of Sales. If and whenever a suspension of the right of
redemption or a postponement of the date of payment or redemption has been
declared pursuant to the Trust's Declaration of Trust and has become effective,
then, until such suspension or postponement is terminated, no further orders for
shares shall be accepted by you except such unconditional orders placed with you
before you have knowledge of the suspension. Each Fund reserves the right to
suspend the sale of its shares and your authority to accept orders for shares on
behalf of the Fund if, in the judgment of a majority of the Trust's Board of
Trustees, it is in the best interests of the Fund to do so, such suspension to
continue for such period as may be determined by such majority; and in that
event, no shares will be sold by the Fund or by you on behalf of the Fund while
such suspension remains in effect except for shares necessary to cover
unconditional orders accepted by you before you had knowledge of the suspension.
9. Expenses. The Trust will pay (or will enter into arrangements providing
that persons other than you will pay) all fees and expenses in connection with
the preparation and filing of any registration statement, prospectus and
Statement of Additional Information or any amendments thereto under the 1933 Act
covering the issue and sale of shares and in connection with the qualification
of shares for sale in the various states in which the Funds shall determine
advisable to qualify such shares for sale. The Trust, or applicable Fund, will
also pay the issue taxes or (in the case of shares redeemed) any initial
transfer taxes thereon.
10. Conformity with Law. You agree that in selling the shares you will duly
conform in all respects with the laws of the United States and, if necessary,
any state in which such shares may be offered for sale by you pursuant to this
Agreement.
11. Indemnification. You agree to indemnify and hold harmless the Trust and
each of its Board members and officers and each person, if any, who controls the
Trust or any Fund within the meaning of Section 15 of the Securities Act of
1933, as amended, against any and all losses, claims, damages, liabilities or
litigation (including legal and other expenses) to which the Trust, Fund or such
Board members, 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 (a) may be based upon any wrongful
act by you or any of your employees or representatives or (b) may be based upon
any untrue statement or alleged untrue statement of a material fact contained in
a registration statement, prospectus or statement of additional information
covering shares of the Trust 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 in
light of the circumstances in which they were made if such statement or omission
was made in reliance upon information furnished or confirmed in writing to the
Trust by you, or (c) may be incurred or arise by reason of your acting as the
Trust's agent instead of purchasing and reselling shares as principal in
distributing shares to Eligible Purchasers, provided that in no case is your
indemnity in favor of a Board member or officer of the Trust or any other person
deemed to protect such Board member or officer of the Trust 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.
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You are not authorized to give any information or to make any
representations on behalf of the Trust or in connection with the sale of shares
other than the information and representations contained in a registration
statement, prospectus, or statement of additional information covering shares,
as such registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time. No person other
than you is authorized to act as principal underwriter for the Trust.
12. Duration and Termination of this Agreement. This Agreement shall remain
in effect until the second anniversary of the date upon which this Agreement was
executed by the parties hereto, and from year to year thereafter, but only so
long as such continuance is specifically approved at least annually by (a) a
majority of the Board of Trustees who are not interested persons of you (other
than as Board members) or of the Trust, cast in person at a meeting called for
the purpose of voting on such approval, and (b) either (i) the Board of Trustees
of the Trust, or (ii) a majority of the outstanding voting securities of the
Trust. This Agreement may, on 60 days' written notice, be terminated at any
time, without the payment of any penalty, by the Board of Trustees of the Trust,
by a vote of a majority of the outstanding voting securities of the Trust, or by
you. This Agreement will automatically terminate in the event of its assignment
by you. In interpreting the provisions of this Section 12, the definitions
contained in Section 2(a) of the Investment Company Act of 1940 (particularly
the definitions of "interested person", "assignment" and "voting security")
shall be applied.
13. Amendment of this Agreement. 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. If the Trust should at any time deem it
necessary or advisable in the best interests of the Trust 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 Trust may terminate this
agreement forthwith. If you should at any time request that a change be made in
the Trust's Declaration of Trust or By-Laws, or in its 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 shares,
and the Trust should not make such necessary change within a reasonable time,
you may terminate this Agreement forthwith.
14. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or limit 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.
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Very truly yours,
XXXX XXXXXXX DECLARATION TRUST
By: /s/Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
President
The foregoing Agreement is hereby
accepted as of the date hereof.
XXXX XXXXXXX FUNDS, INC.
By: /s/Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Chairman, President and CEO
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