Exhibit 6
XXXXXXX VARIABLE LIFE INVESTMENT FUND
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
______, 1985
Xxxxxxx Fund Distributors, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Underwriting Agreement
Dear Sirs:
Xxxxxxx Variable Life Investment Fund (the "Fund") has been formed under
the laws of the Commonwealth of Massachusetts to engage in the business of an
investment company. The shares of beneficial interest of the Fund ("Shares") are
initially divided into four classes ("Portfolios"). However, additional
Portfolios may be established from time to time by action of the Trustees. If
the context requires and unless otherwise specifically provided herein, the term
"Fund" as used in this Agreement shall mean, in addition, each separate
Portfolios now existing and subsequently created. The Fund 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 (the "Investment Company Act"), of
the Shares of the Fund and you are willing to act as such principal underwriter
and to perform the duties and functions of underwriter in the manner and on the
terms and conditions hereinafter set forth. Accordingly, the Fund hereby agrees
with you as follows:
1. Delivery of Fund Documents. The Fund has furnished you with copies,
properly certified or authenticated, of each of the following:
(a) Declaration of Trust of the Fund dated March 15, 1985 (the
"Declaration of Trust"), including a
(b) Written Instrument to Establish and Designate Separate Series of
Shares, as amended or supplemented from time to time.
(c) By-laws of the Fund.
(d) Resolutions of the Trustees of the Fund selecting you as principal
underwriter and approving this form of Agreement.
The Fund will furnish you from time to time with copies, properly certified or
authenticated, of all amendments of or supplements to the foregoing, if any.
The Fund will furnish you promptly with properly certified or
authenticated copies of any registration statements filed by it with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
("Securities Act"), or the Investment Company Act, together with any financial
statements and exhibits included therein, and all amendments or supplements
thereto hereafter filed.
2. Registration of Additional Shares. The Fund will from time to time use
its best efforts to register under the Securities Act such Shares as you may
reasonably be expected to sell on behalf of the Fund. You and the Fund will
cooperate in
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taking such action as may be necessary from time to time to qualify Shares so
registered for sale by you or the Fund in any jurisdictions mutually agreeable
to you and the Fund, and to maintain such qualifications. This Agreement relates
to the issue and sale of Shares that are duly authorized and registered and
available for sale by the Fund, including redeemed or repurchased Shares if and
to the extent that they may be legally sold and if, but only if, the Fund sees
fit to sell them.
3. Sale of Shares. The Fund has been formed to provide an investment
vehicle for the separate accounts of life insurance companies offering variable
life insurance policies and variable annuity contracts. Consequently, when used
herein the terms "investor", "public", and similar terms include such insurance
companies and their separate accounts. No person other than you is authorized to
act as principal underwriter (as such term is defined in the Investment Company
Act) for the Fund. Subject to the provisions of paragraph 5 and 7 hereof and to
such minimum or maximum purchase or other requirements as may from time to time
be currently indicated in the Fund's registration statement or prospectus, you
are authorized to sell, as agent on behalf of the Fund, Shares authorized for
issue and registered under the Securities Act. You may also purchase as
principal such Shares for resale to the public. Such sales will be made by you
on behalf of the Fund by accepting unconditional orders to purchase such Shares
placed
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with you by investors and such purchases will be made by you only after
acceptance by you of such orders. The sales price to the public of such Shares
shall be the public offering price as defined in paragraph 6 hereof.
4. Solicitation of Orders. You will use your best efforts (but only in
jurisdictions in which you may lawfully do so) to obtain from investors
unconditional orders for Shares authorized for issue by the Fund and registered
under the Securities Act, provided that you may in your discretion refuse to
accept orders for Shares from any particular investor.
5. Sale of Shares by the Fund. Unless you are otherwise notified by the
Fund, any right granted to you to accept orders for Shares or to make sales on
behalf of the Fund or to purchase Shares for resale will not apply to Shares
issued in connection with the merger or consolidation of any other investment
company with the Fund or its acquisition, by purchase or otherwise, of all or
substantially all of 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 by the Fund to shareholders by virtue of their being
holders of Shares of the Fund, including Shares to be purchased through
reinvestment of income dividends and capital gains distributions.
6. Public Offering Price. All Shares offered and sold to investors by you
will be offered and sold at the public offering price. The public offering price
for all accepted
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subscriptions will be the net asset value per Share, as determined in the manner
provided in the Declaration of Trust, as now in effect or as it may be amended,
next after the order is accepted by you.
7. Suspension of Sales. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be accepted by you except unconditional orders placed with you
before you had knowledge of the suspension. In addition, the Fund reserves the
right to suspend sales and your authority to accept orders for Shares on behalf
of the Fund if, in the judgment of the Fund, it is in the best interests of the
Fund to do so, such suspension to continue for such period as may be determined
by the Fund; and in that event, no Shares will be sold 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.
8. Suspension, Termination or Limitation of Series. You acknowledge that
the Fund may, at any time such action is deemed desirable, suspend or terminate
sales of Shares of a Series and that upon your receipt of notice of such action
by the Fund you will, for such period as determined by the Fund, accept no
further orders for Shares of that Series except unconditional orders placed with
you before you had knowledge of such action. You acknowledge further that the
Fund may from
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time to time set upper and lower limits on the number of Shares of a Series for
which a purchaser may subscribe and may limit sales of Shares of a Series to
their existing shareholders.
9. Portfolio Transactions. Securities may be bought or sold for the Fund
by or through you and you may participate directly or indirectly in brokerage
commissions or "spread" in respect of transactions in securities of the Fund;
provided, however, that all sums of money received by you as a result of such
purchases and sales or as a result of such participation must, after
reimbursement of your actual expenses in connection with such activity, be paid
over by you to or for the benefit of the Fund.
10. Expenses. (a) The Fund shall pay or arrange for the payment of all
fees and expenses:
(1) in connection with the preparation, setting in type and filing
of any registration statement and prospectus under the
Securities Act and/or the Investment Company Act, and any
amendments or supplements thereto that may be made from time
to time;
(2) in connection with the registration and qualification of
Shares for sale in the various jurisdictions in which the Fund
shall determine it advisable to qualify such Shares for sale
(including registering the Fund as a broker or dealer or any
officer of
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the Fund or other person as agent or salesman of the Fund in
any state);
(3) of preparing, setting in type, printing and mailing any
notice, proxy statement, report, prospectus or other
communication to shareholders of the Fund in their capacity as
such;
(4) of preparing, setting in type, printing and mailing
prospectuses annually to existing shareholders;
(5) in connection with the issue and transfer of Shares resulting
from the acceptance by you of orders to purchase Shares placed
with you by investors, including the expenses of printing and
mailing confirmations of such purchase orders and the expenses
of printing and mailing a prospectus included with the
confirmation of such orders;
(6) of any issue taxes or any initial transfer taxes;
(7) of that portion of WATS (or equivalent) telephone lines other
than the portion allocated to you in this paragraph 10;
(8) of wiring funds in payment of Share purchases or in
satisfaction of redemption or repurchase requests, unless such
expenses
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are paid for by the investor or shareholder who initiates the
transaction;
(9) of that portion of the cost of printing business reply
envelopes allocated to the Fund on the basis of use by
existing shareholders to place redemption requests or to
request information;
(10) of postage for all business reply envelopes;
(11) of that portion of one or more CRT terminals connected with
the computer facilities of the transfer agent and used by the
Fund to gain access to its shareholder records, allocated on
the basis of such use;
(12) permitted to be paid or assumed by the Fund pursuant to a plan
("12b-1 Plan"), if any, adopted by the Fund in conformity with
the requirements of Rule 12b-1 under the Investment Company
Act ("Rule 12b-1") or any successor rule, notwithstanding any
other provision to the contrary herein; and
(13) not specifically allocated to you hereunder.
(b) You shall pay or arrange for the payment of all fees and expenses:
(1) of printing and distributing any prospectuses or reports
prepared for your use in connection with the offering of
Shares to the public;
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(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of
Shares to the public;
(3) of advertising in connection with the offering of Shares to
the public;
(4) incurred in connection with your registration as a broker or
dealer or the registration or qualification of your officers,
directors, agents or representatives under Federal and state
laws;
(5) of that portion of WATS (or equivalent) telephone lines,
allocated to you on the basis of use by investors (but not
shareholders) who request information about or prospectuses of
the Fund;
(6) of that portion of printing business reply envelopes,
allocated to you on the basis of use by investors and
shareholders to purchase Shares; and
(7) of any activity which is primarily intended to result in the
sale of shares issued by the Fund, unless a 12b-1 Plan shall
be in effect which provides that the Fund shall bear some or
all of such expenses.
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Expenses which are to be allocated between you and the Fund shall be
allocated pursuant to reasonable procedures or formulae mutually agreed upon,
which procedures or formulae shall to the extent practicable reflect studies of
relevant empirical data.
11. Selected Dealers. In connection with the offering of shares to the
separate accounts of life insurance companies, or to the extent that the offer
of variable life insurance policies and variable annuity contracts, the premiums
for which are allocated to such separate accounts which invest in Shares, may be
deemed to include an offer of Shares, you may enter into agreements with other
broker-dealers registered under the Securities Exchange Act of 1934, as amended,
provided that any such agreement shall be subject to the approval of the
Trustees of the Fund.
12. Conformity with Law. You agree that in selling Shares you will duly
conform in all respects with the laws of the United States and any jurisdiction
in which such Shares may be offered for sale by you pursuant to this Agreement
and to the rules and regulations of the National Association of Securities
Dealers, Inc., of which you are a member.
13. Independent Contractor. You shall be an independent contractor and
neither you nor any of your officers or employees is or shall be an employee of
the Fund in the performance of your duties hereunder. You shall be responsible
for your own conduct and the employment, control and conduct of
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your agents and employees and for injury to such agents or employees or to
others through your agents or employees. You assume full responsibility for your
agents or employees under applicable statutes and agree to pay all employee
taxes thereunder.
14. Services Not Exclusive. Except to the extent necessary to perform your
obligations hereunder, nothing herein shall be deemed to limit or restrict your
right or that of any of your affiliates or employees, including any of your
employees who may also be a Trustee, officer or employee of the Fund, to engage
in any other business or to devote time and attention to the distribution or
other related aspects of any other registered investment company or to render
services of any kind to any other corporation, firm, individual or association.
15. Indemnification. You agree to indemnify and hold harmless the Fund and
each of its Trustees and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages, liabilities or litigation (including legal and other
expenses) to which the Fund or such Trustees, 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 (i)
may be based upon any wrongful act by you or any of your employees or
representatives, of (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a
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registration statement or prospectus covering Shares 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 if such a statement or omission was made in reliance upon
information furnished to the Fund by you, or (iii) may be incurred or arise by
reason of your acting as the Fund's agent instead of purchasing and reselling
Shares as principal in distributing Shares to the public, provided, however,
that in no case (i) is your indemnity in favor of a Trustee or officer of any
other person deemed to protect such Trustee or officer 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 or (ii) are you to be liable under your indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Fund or such person, as the case may be, shall
have notified you in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claims shall have
been served upon the Fund or upon such person (or after the Fund or such person
shall have received notice of such service on any designated agent), but failure
to notify you of any such claim shall not relieve you from any liability which
you have to the
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Fund or any person against whom such action is brought otherwise than on account
of your indemnity agreement contained in this paragraph. You shall be entitled
to participate, at your own expense, in the defense, or, if you so elect, to
assume the defense of any suit brought to enforce any such liability, but, if
you elect to assume the defense, such defense shall be conducted by counsel
chosen by you and satisfactory to the Fund, to its officers and Trustees, or to
any controlling person or persons, defendant or defendants in the suit. In the
event that you elect to assume the defense of any such suit and retain such
counsel, the Fund, such officers and Trustees or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them, but, in case you do not elect to assume the
defense of any such suit, you will reimburse the Fund, such officers and
Trustees or controlling person or persons, defendant or defendants in such suit,
for the reasonable fees and expenses of any counsel retained by them. You agree
promptly to notify the Fund of the commencement of any litigation or proceedings
against it in connection with the issue and sale of any Shares.
The Fund agrees to indemnify and hold harmless you and each of your
directors and officers and each person, if any, who controls you within the
meaning of Section 15 of the Securities Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses)
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to which you or such directors, 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 (i) may be
based upon any wrongful act by the Fund or any of its employees or
representatives, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement or
prospectus covering Shares 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 if
such statements or omission was made in reliance upon information furnished to
you by the Fund; provided, however, that in no case (i) is the Fund's indemnity
in favor of a director or officer or any other person deemed to protect such
director or officer 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 or (ii) is the
Fund to be liable under its indemnity agreement contained in this paragraph with
respect to any claims made against you or any such director, officer or
controlling person unless you or such director, officer or controlling person,
as the case may be, shall have notified the Fund in writing within a reasonable
time after the summons or other first legal process giving
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information of the nature of the claim shall have been served upon you or upon
such director, officer or controlling person (or after you or such director,
officer or controlling person shall have received notice of such service of such
service on any designated agent), but failure to notify the Fund of any claim
shall not relieve it from any 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 paragraph. The Fund 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 Fund elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to you, its directors, officers or controlling person or persons,
defendant or defendants, in the suit. In the event the Fund elects to assume the
defense of any such suit and retain such counsel, you, your directors, officers
or controlling person or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel retained by them, but, in
case the Fund does not elect to assume the defense of any such suit, it will
reimburse you or such directors, officers or controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and expenses of any
counsel retained by them. The Fund agrees promptly to notify you of the
commencement of any litigation or proceedings against it or any of its officers
or Trustees in connection with the issuance or sale of any Shares.
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16. Authorized Representations. The Fund is not authorized to give any
information or to make any representations on behalf of you other than the
information and representations contained in a registration statement or
prospectus covering Shares, as such registration statement and prospectus may be
amended or supplemented from time to time, or reports prepared for distribution
to shareholders of the Fund.
You are not authorized to give any information or to make any
representations on behalf of the Fund in connection with the sale of Shares
other than the information and representations contained in a registration
statement or prospectus covering Shares, as such registration statement and
prospectus may be amended or supplemented from time to time, or reports prepared
for distribution to shareholders of the Fund.
17. Duration and Termination of the Agreement. This Agreement shall become
effective upon the effective date of the Fund's initial registration statement
under Securities Act and, unless sooner terminated as provided herein, will
remain in effect until , 1987 and from year to year thereafter,
but only so long as such continuance is specifically approved at least annually
by the vote of a majority of the Trustees of the Fund who are not interested
persons of you or of the Fund, cast in person at a meeting called for the
purpose of voting on such approval, and by vote of the Trustees or of a majority
of the outstanding voting securities of the Fund. This Agreement may, on 60
days' written notice, be
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terminated at any time, without the payment of any penalty, by the Trustees, by
a vote of a majority of the outstanding voting securities of the Fund, or by
you. This Agreement will automatically terminate in the event of its assignment.
In interpreting the provisions of this paragraph 17, the definitions contained
in Section 2(a) of the Investment Company Act (particularly the definitions of
"interested person," "assignment" and "majority of the outstanding voting
securities"), shall be applied.
18. Amendment of this Agreement. No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. If the Fund should at any time deem it
necessary or advisable in the best interests of the Fund 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 Fund may terminate this
Agreement forthwith. If you should at any time request that a change be made in
the Fund's Declaration of Trust or By-laws or in the Fund's methods of doing
business, in order to comply with any requirements of federal law or regulations
of the Securities and Exchange
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Commission or of a national securities association of which you are or may be
member relating to the sale of Shares, and the Fund should not make such
necessary change within a reasonable time, you may terminate this Agreement
forthwith.
19. Miscellaneous. The captions in this Agreement are included for the
convenience of reference only and in no way define or delimit 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.
The name "Xxxxxxx Variable Life Investment Fund" is the designation of the
Trustees for the time being under a Declaration of Trust dated March __, 1985,
and all persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the Trustees,
officers, employees, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund, nor shall resort be had to their
private property for the satisfaction of any obligation or claim or otherwise in
connection with the affairs of the Fund.
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If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Fund, whereupon this letter shall become a binding contract.
Yours very truly,
XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By ______________________________
President
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX FUND DISTRIBUTORS, INC.
By _______________________________
Vice President
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