EXHIBIT (E)
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Jan. 22, 1999
-------
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx XXxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxxxx Xxxxx Variable Insurance Trust (the
"Trust"), an open-end management investment company organized as a business
-----
trust under the laws of the State of Delaware, and consisting of one or more
separate series, has appointed you, the "Distributor", and that you shall be the
-----------
exclusive distributor in connection with the offering and sale of the shares of
beneficial interest, no par value per share (the "Shares"), corresponding to
------
each of the series of the Trust listed in Exhibit A, as the same may be
---------
supplemented from time to time (each such series, a "Fund"), Each Fund may offer
----
one or more classes of its shares (each a "Class") which Classes shall have such
-----
relative rights and conditions and shall be sold in the manner set forth from
time to time in the Trust's Registration Statements, as defined below. The
organization, administration and policies of each Fund are described in its
respective Prospectuses and SAIs (as those terms are defined below). (This
letter, as amended from time to time, shall be referred to hereinafter as the
"Agreement".)
---------
1. DEFINITIONS.
-----------
(a) The terms which follow, when used in this Agreement, shall have
the meanings indicated.
"Effective Date" shall mean the date that any Registration Statement
--------------
or any post-effective amendment thereto becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus
----------------------
relating to the Shares of a Fund or Funds or one or more Classes included
in any Registration Statement or filed with the Securities and Exchange
Commission (the "Commission") pursuant to Rule 497(a).
----------
"Prospectus" shall mean any prospectus relating to the Shares of a
----------
Fund or Funds or one or more Classes, filed with the Commission pursuant to
Rule 497 or, if no filing pursuant to Rule 497 is required, the form of
final prospectus relating thereto included in
any Registration Statement, in each case together with any amendments or
supplements thereto.
"Registration Statement" shall mean any registration statement on
----------------------
Form N-1A relating to the Shares of a Fund, including all exhibits thereto,
as of the Effective Date of the most recent post-effective amendment
thereto. The registration statements of the Trust may be separately filed
with the Commission according to its fixed income, equity and money market
fund offerings.
"Rule 497" refers to such rule (or any successor rule or rules)
--------
under the Securities Act (as defined in Section 2 below).
"SAI" shall mean any statement of additional information relating to
---
the Shares of a Fund or Funds or one or more Classes, filed with the
Commission pursuant to Rule 497 or, if no filing pursuant to Rule 497 is
required, the final statement of additional information included in any
Registration Statement.
The "Initial Acceptance Date" of any Fund shall mean the first date
-----------------------
on which the Trust sells Shares of such Fund pursuant to any Registration
Statement.
References in this Agreement to "Rules and Regulations" shall be
---------------------
deemed to be references to such rules and regulations as then in effect,
and references to this Agreement and the Fund Agreements (as defined in
Section 2 below), shall be deemed to be references to such agreements as
then in effect.
2. REPRESENTATIONS AND WARRANTIES. The Trust represents and warrants to and
------------------------------
agrees with you, for your benefit, as set forth below in this Section 2.
Each of the representations, warranties and agreements made in this Section
2 shall be deemed made on the date hereof, on the date of any filing of any
Prospectus pursuant to Rule 497 and any Effective Date after the date
hereof, with the same effect as if made on each such date.
(a) The Trust meets the requirements for use of Form N-1A under the
Securities Act of 1933, as amended (the "Securities Act"), the Investment
--------------
Company Act of 1940, as amended (the "Investment Company Act"), and the
----------------------
Rules and Regulations of the Commission under each such Act and in respect
of said form (or of such successor form as the Commission may adopt). The
Trust has filed with the Commission an initial Registration Statement (File
Number 333-35883) on Form N-1A with respect to an indefinite number of
Shares of the Funds and is duly registered as an open-end management
investment company. The Registration Statement has become effective and no
stop order suspending its effectiveness has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission.
-2-
(b) The Trust's notification of registration on Form N-8A (as amended)
complies with the applicable requirements of the Investment Company Act and the
Rules and Regulations thereunder.
(c) Each Registration Statement, Prospectus and SAI conform, and any
further amendments or supplements to any Registration Statement, Prospectus or
SAI will conform, in all material respects, with the Securities Act and
Investment Company Act and the Rules and Regulations thereunder; the
Prospectuses and the SAIs do not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and, on each Effective Date, the Registration Statements did not and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the Trust makes no
-------- -------
representations or warranties as to the information contained in or omitted from
any Registration Statement, Prospectus or SAI in reliance upon and in conformity
with information furnished in writing to the Trust by you (with respect to
information relating solely to your role as distributor of the Shares of the
Funds) expressly for use therein.
(d) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations of the
Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Trust by you
(with respect to information relating solely to your role as the exclusive
distributor of the Shares of the Funds) expressly for use therein.
(e) The Trust has been duly created and is lawfully and validly existing
as a business trust under the laws of the State of Delaware, and has, on the
date hereof, and will have, on and after the date hereof, full power and
authority to own its properties and conduct its business as described in each
Registration Statement, Prospectus and SAI, and is duly qualified to do business
under the laws of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business.
(f) The Trusts's authorized capitalization is as set forth in the
Registration Statements. Issuance of the Shares of the Funds as contemplated by
this Agreement and by each Prospectus and SAI has been duly and validly
authorized, and the Shares of the Funds, when issued and paid for as
contemplated hereby and thereby, will be fully-paid and, except as contemplated
by the Prospectus and SAI, nonassessable and will conform to the
-3-
description thereof contained in the corresponding Prospectus and SAI. The
holders of outstanding shares of each Fund are not entitled to preemptive
or other rights to subscribe for the Shares of any Fund, other than as
contemplated by the Prospectus and SAI relating to each fund.
(g) This Agreement has been duly authorized, executed and delivered
by the Trust.
(h) On or prior to the Initial Acceptance Date, all of the agreements
described in each Prospectus and SAI relating to the Fund or Funds whose
Shares are first being sold on such date (collectively, the "Fund
----
Agreements") will have been duly authorized, executed and delivered by the
----------
Trust, and will comply in all material respects with the Investment Company
Act and the Rules and Regulations thereunder.
(i) The Fund Agreements constitute or will constitute, on and after
the Initial Acceptance Date, assuming due authorization, execution and
delivery by the parties thereto other than the Trust, valid and legally
binding instruments, enforceable in accordance with their respective terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(j) No consent, approval, authorization or order of any court or
governmental agency or body is or shall be required, as the case may be,
for the consummation from time to time of the transactions contemplated by
this Agreement and the Fund Agreements, except such as may be required (i)
under the Securities Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Investment Company Act, the Rules and Regulations
------------
under each of the foregoing or the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD") (any of which that
----
were required before offers were made will have been obtained before such
offers were made and all of which will have been obtained, with respect to
each Fund, by the Effective Date of the post-effective amendment relating
to the Fund, except for those which become required under such acts or
rules or any other law or regulation after the Fund's Effective Date but
that were not required before such Effective Date, all of which shall be
obtained in a timely manner) or (ii) state securities laws of any
jurisdiction in connection with the issuance, offer or redemption of the
Shares of each Fund by the Trust.
(k) The operations and activities of the Trust and each Fund as
contemplated by the Prospectuses and the SAIs, the performance by the Trust
and each Fund of this Agreement and the Fund Agreements, the making of the
offer or the sale of Shares of each Fund and consummation from time to time
of such sales, the redemption of Shares of each Fund, or any other
transactions contemplated herein, in the Fund Agreements, in the
Prospectuses or in the SAIs, will not conflict with, result in a breach of,
or constitute a default under, the declaration of trust or the Trust's By-
laws or, in any material respect, the
-4-
terms of any other agreement or instrument to which the Trust is a party or
by which it is bound, or any order or regulation applicable to the Trust of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Trust.
(l) There is not pending, or to the best knowledge of the Trust,
threatened, any action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator to which the Trust is (or, to
the best knowledge of the Trust, is threatened to be) a party, of a
character required to be described in any Registration Statement,
Prospectus or SAI which is not described as required.
(m) There is no contract or other document of a character required to
be described in any Registration Statement, Prospectus or SAI, or to be
filed as an exhibit, which is not described or filed as required.
(n) Except as stated or contemplated in the Registration Statements,
Prospectuses and SAIs, (i) the Trust has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions,
whether or not in the ordinary course of business, that are material to the
Trust, (ii) there has not been any material adverse change, or, any
development involving a prospective material adverse change, in the
condition (financial or other) of the Trust, (iii) there has been no
dividend or distribution paid or declared in respect of the Trust, and (iv)
the Trust has not incurred any indebtedness for borrowed money.
(o) Each Fund will elect or has elected to be treated as a regulated
investment company as defined in Section 851 (a) of the Internal Revenue
Code of 1986 for its first taxable year and will operate so as to qualify
as such in its current and all subsequent taxable years.
(p) Except as stated or contemplated in any Prospectus or SAI, the
Trust owns all of its assets free and clear in all material respects of all
liens, security interests, pledges, mortgages, charges and other
encumbrances or defects.
3. SALES OF THE SHARES; OTHER SERVICES AS DISTRIBUTOR.
---------------------------------------------------
(a) The Trust hereby grants to you exclusive authority to distribute
the Trust shares to insurance companies ("Participating Insurance
-----------------------
Companies") and their separate accounts ("Participating Accounts") to find
--------- ----------------------
certain variable annuity contracts or variable life insurance policies (the
"Contracts") and to other persons or plans ("Participating Plans") that
-------- -------------------
qualify to purchase shares of the Trust under Section 817(h) of the
Internal Revenue Code and the regulations thereunder without impairing the
ability of the Participating Accounts to consider the portfolio investments
of the Trust as constituting investments of such Accounts for the purpose
of satisfying the diversification requirements of Section 817(h) (all such
persons being referred to herein as "Qualified Persons"). Such
-----------------
-5-
authority shall include the right to select which Series or Classes of Shares
shall be made available to any Qualified Person. Such Shares shall be made
available to a Qualified Person (each purchasing Qualified Person being referred
to herein as a "Participating Investor") consistent with this Agreement, with
the relevant Prospectus, and with the terms and conditions of any exemptive
order obtained by the Trust from the SEC or SEC rule or regulation relied upon
by the Trust and, in the case of a Participating Insurance Company or a
Participating Plan owning more than 10% of the Trust's Shares, pursuant to an
agreement containing provisions consistent with the form of Participation
Agreement attached hereto. You are hereby authorized to enter into Participation
Agreements with Qualified Persons, and in connection therewith to make such
changes to the form of Participation Agreement attached hereto as you deem
appropriate in the circumstances, provided that the executed agreement is
consistent with the form of Participation Agreement attached hereto and with any
other Participation Agreements then in effect. You shall have the right to
suspend or terminate the offering of Shares to any Participating Investor
subject to any applicable conditions in the Participation Agreement with such
investor. In any event, the Trust reserves the right in its sole discretion to
refuse to accept a request for the purchase of Shares.
(b) You acknowledge that the only information provided to you by the
Trust is that contained in each Registration Statement, Prospectus and SAI.
Neither you nor any other persons is authorized by the Trust to give any
information or to make any representations, other than those contained in the
relevant Registration Statement, Prospectus and SAI and any sales literature
approved by appropriate representatives of the Trust. You may undertake or
arrange for such advertising and promotion as you believe is reasonable in
connection with the solicitation of orders to purchase Shares of a Fund;
provided, however, that you will provide the Trust with and obtain the Trust's
approval of copies of any advertising and promotional materials approved,
produced or used by you prior to their use (unless otherwise agreed by the
parties hereto). You will file such materials with the commission and the NASD
as may be required by the Exchange Act and the Investment Company Act and the
Rules and Regulations thereunder and by the rules of the NASD.
(c) You agree to perform such services as are described in each
Registration Statement, Prospectus and SAI as to be performed by the Distributor
including, without limitation, distributing Account Information Forms.
(d) All of your activities as distributor of the Shares of the Funds
shall comply, in all material respects, with all applicable laws, Rules and
Regulations, including, without limitation, all rules and regulations made or
adopted by the Commission or by any securities association registered under the
exchange Act, including the NASD, as in effect from time to time.
-6-
4. Offering by the Distributor.
---------------------------
(a) You will act as agent for the Trust in the distribution of Shares
of the Funds and you agree to use your best efforts to offer and sell Shares of
the Funds as provided for in Section 3 of this Agreement. You may also subscribe
for Shares of a Fund as principal for resale to Participating Investors,
provided you qualify as a Qualified Person. You shall devote reasonable time and
effort to effect sales of Shares of the Funds, but you shall not be obligated to
sell any specific number of Shares. Nothing contained herein shall prevent you
from entering into like distribution arrangements with other investment
companies. The Trust may appoint Participating Insurance Companies that have
entered into Participation Agreements as an agent of the Trust for the limited
purpose or receiving purchase and redemption requests on behalf of their
Participating Account (but not with respect to any Trust shares that may be held
in the general account of such Company) for Shares of those Series or Classes
made available thereunder, based on allocations of amounts to the Participating
Account or subaccounts thereof under the Contracts, other transactions relating
to the Contracts or the Participating Account and customary processing of the
Contracts.
(b) The Trust shall redeem Shares of any Fund presented to it by
Participating Investors at the price determined in accordance with, and in the
manner set forth in, the Prospectus for such Fund and the Participation
Agreement with such investor, as applicable.
(c) Unless you are otherwise notified by the Trust, any right granted
to you to accept orders for Shares of any Fund or to make sales on behalf of the
Trust or to purchase Shares of any Fund for resale will not apply to (i) Shares
issued in connection with the merger or consolidation of any other investment
company with the Trust or its acquisition, by purchase or otherwise, of all or
substantially all of the assets of any investment company or substantially all
the outstanding securities of any such company, and (ii) Shares that may be
offered by the Trust to shareholders by virtue of their being such shareholders.
5. Compensation.
------------
(a) It is not anticipated that any Shares will be subject to a sales
charge or a contingent deferred sales charge. In the event that any Shares of a
Class are subject to a sales charge or a contingent deferred sales charge, you
will be entitled to receive that portion of the sales charges or contingent
deferred sales charge applicable to sales of Shares of a Class as set forth in
the relevant Prospectus.
(b) The Trust may enter into Plans of Distribution pursuant to Rule
12b-1 under the 1940 Act ("Rule 12b-1 Plans") with respect to certain classes of
certain Funds. The Trust shall pay to you as distributor of such Classes the
compensation pursuant to the Rule 12b-1 Plans as shall be set forth from time to
time in the Prospectuses and SAIs and provided for under the Rule 12b-1 Plan.
-7-
(c) The Trust shall not be obligated to pay you compensation with respect
to your distribution of Shares that are not subject to a sales charge;
contingent deferred sales charge or Rule 12b-1 Plan. The amounts payable as
compensation pursuant to this Section 5 shall be subject to the limitations in
Section 2830 of the Conduct Rules of the NASD, to the extent applicable to the
Trust.
6. Undertakings. The Trust agrees with you, for your benefit, that:
------------
(a) The Trust shall sell Shares of Funds in accordance with the terms
of each Participation Agreement or otherwise so long as it has such Shares
available for sale and, in the case of sales covered by any Participation
Agreement, no suspensions or terminations thereunder are in effect, and shall
cause the transfer agent (the "Transfer Agent") to record on its books the
--------------
ownership of such Shares registered in such names and amounts as you have
requested in writing or other means, as promptly as practicable in accordance
with the terms and conditions of any Participation Agreements and the relevant
Prospectus. The Trust will make such filings under the Investment Company Act
with, and pay such fees to, the Commission as are necessary or required to
register Shares of any Fund sold by you on behalf of the Trust. Prior to the
termination of this Agreement, the Trust will not file any amendment to any
Registration Statement or amendment or supplement to any Prospectus or SAI
(whether pursuant to the Securities Act, the Investment Company Act, or
otherwise) without prior notice to you; provided, however, that nothing
-------- -------
contained in this Agreement shall in any way limit the Trust's right to file
such amendments to any Registration Statement, or amendments or supplements to
any Prospectus or SAI as the Trust may deem advisable, such right being in all
respects absolute and unconditional, it being understood that this proviso shall
not relieve the Trust of its obligation to give prior notice of any such
amendment or supplement to you. Subject to the foregoing sentence, if the filing
of any Prospectus or SAI, as the case may be, contained in any Registration
Statement at the relevant Effective Date, or any amendment or supplement
thereto, is required under Rule 497, the Trust will cause such Prospectus or
SAI, and any amendment or supplement thereto, to be filed with the Commission
pursuant to the applicable paragraph of Rule 497 within the time period
prescribed and will, if requested, provide evidence satisfactory to you of such
timely filing. The Trust will promptly advise you (i) when such Prospectus or
SAI shall have been filed (if required) with the Commission pursuant to Rule
497, (ii) when, prior to termination of this Agreement, any amendment to any
Registration Statement shall have been filed or become effective, (iii) of any
request by the Commission for any amendment of any Registration Statement or
amendment or supplement to any Prospectus or SAI or for any additional
information relating to or that could affect disclosure in any of the foregoing,
(iv) of the issuance by the Commission of any order suspending the effectiveness
of any Registration Statement, or suspending the registration of the Trust under
the Investment Company Act, or the institution or (to the best knowledge of the
Trust) threatening of any proceeding for that purpose, and (v) of the receipt by
the Trust of any notification with respect to the suspension of the
qualification of the offer or sale of
-8-
Shares of a Fund in any jurisdiction or the initiation or (to the best knowledge
of the Trust) threatening of any proceeding for such purpose. The Trust will use
its best efforts to prevent the issuance of any such order or suspension and, if
issued, to obtain as soon as possible the withdrawal or suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be
delivered under the Securities Act, any event occurs as a result of which such
Prospectus or SAI would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made not misleading, or if it
shall be necessary to amend any Registration Statement or amend or supplement
any Prospectus or SAI to comply with the Securities Act, the Investment Company
Act or the Rules and Regulations thereunder, the Trust will notify you promptly
of any such circumstances and promptly will prepare and file with the
commission, subject to the third sentence of Section 6(a), an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable (giving effect to the normal periodic
reporting requirements under the Investment Company Act and the Rules and
Regulations thereunder), the Trust will make generally available to its
shareholders and, subject to Section 8 of this Agreement, to you, a report
containing the financial statements required to be included in such reports
under Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to
you as many conformed copies of the Registration Statements including exhibits
thereto, on each Effective Date, as you may reasonably request for yourself
and, so long as a delivery of a Prospectus or SAI by you may be required by law,
the number of copies of each Prospectus and each SAI as you may reasonably
request for yourself.
(e) Consistent with the practice of mutual funds whose shares are made
available only to Qualified Persons, the Trust shall undertake to comply with
the terms and conditions relevant exemptions from the securities laws of such
of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx, the District of Columbia, the
Commonwealth of Puerto Rico, the Territory of Guam and such other jurisdictions
as you and the Trust may approve. To the extent that exemptions from securities
laws in any such jurisdiction are not available to the Trust and its Shares, the
Trust shall use its best efforts to comply with the registration, notification
or qualifications in effect as long as may be reasonably requested by you,
provided that the Trust shall not be required in connection herewith or as
condition hereto to qualify as foreign corporation or to execute a general
consent, to service of process in any jurisdiction. You shall furnish such
information and other material relating to your affairs and activities as may be
required by the Trust in connection with such qualifications.
-9-
(f) The Trust shall keep you fully informed with respect to its affairs
and, subject to Section 8 of this Agreement, the trust, if so requested, will
furnish to you, as soon as they are available, copies of all reports,
communications and financial statements sent by the Trust to its shareholders
or filed by, or on behalf of, the Trust with the Commission.
(g) The Trust, if so requested, shall furnish to you a copy of the
opinion of counsel for the Trust to the effect that the Shares issued by the
Trust are legally issued, fully paid and nonassessable. The Trust further agrees
that if, in connection with the filing of any post-effective amendment to any
Registration Statement after the date of this Agreement:
(i) a change is made to the statements under the caption "Shares
of the Fund" in any Prospectus or SAI that is deemed material by you,
the Trust, if so requested, shall furnish to you an opinion of counsel
for the Trust, dated the date of such post-effective amendment, to the
effect of Section 2 (to the extent it relates to the description of the
Shares);
(ii) the Fund Agreements are amended or modified in any manner,
the Trust, if so requested, shall furnish to you an opinion of counsel
for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption
"Taxation" in any Prospectus or SAI, the Trust, if so requested, shall
furnish to you an opinion of counsel for the Trust, dated the date of
such post-effective amendment.
Any opinion or statement furnished pursuant to this Section 6(g) shall be
modified as necessary to relate to this Agreement and the Fund Agreements and
the Rules and Regulations as then in effect.
(h) The Trust, if so requested, shall furnish to you on each subsequent
Effective Date with respect to an amendment of a Registration Statement which
first included certified financial statements for the preceding fiscal year, in
respect of a Fund, a copy of the report of the Trust's independent public
accountants with respect to the financial statements and selected per share data
and ratios relating to such Fund, addressed to you. The Trust further agrees
that the Trust, if so requested, shall furnish to you (i) on each date on which
the Trust, pursuant to the preceding sentence, furnishes to you a report of its
independent public accountants, a certificate of its treasurer or assistant
treasurer in a form reasonably satisfactory to you describing in reasonable
detail how the figures included under the captions "Portfolio Transactions" and
"Performance Information" (or similar captions) in the prospectus or SAI of such
Fund and the figures relating to the aggregate amounts of remuneration paid to
officers, trustees and members of the advisory board and affiliated persons
thereof (as required by Section 30(d)(5) of the Investment Company Act)
-10-
were calculated and confirming that such calculations are in conformity
with the Rules and Regulations under the Investment Company Act and (ii)
on each date the Trust files with the Commission the Trust's required
semi-annual financial statements, an certificate of its treasurer or
assistant treasurer in a form reasonably satisfactory to you, describing
the manner in which such financial statements were prepared and
confirming that such financial statements have been prepared in
conformity with the Rules and Regulations under the Investment Company
Act.
7. Conditions to Your Obligations as Distributor and Principal Underwriter.
-----------------------------------------------------------------------
Your obligations as distributor of the Shares of the Funds shall be
subject to the accuracy of the representations and warranties on the
part of the Trust contained herein as of the dates when made or deemed
to have been made, to the accuracy in all material respects of the
statements made in any certificates, letters or opinions delivered
pursuant to the provisions of Sections 6 or 7 of this Agreement, to the
performance by the Trust of its obligations hereunder and the following
additional conditions:
(a) If filing of any Prospectus or SAI, or any amendment or
supplement to any Prospectus or SAI, or any other document is required
pursuant to any applicable provision of Rule 497, such Prospectus or
SAI, or any such amendment or supplement and other document will be
filed in the manner and within the time period required by the
applicable provision of Rule 497; and no order suspending the
effectiveness of the amendment shall have been issued and no proceedings
for that purpose shall have been instituted or, to the best knowledge of
the Trust, threatened and the Trust shall have complied with any request
of the Commission for additional information (to be included in the
relevant Registration Statement, Prospectus, SAI or as the Commission
otherwise shall have requested).
(b) At the Initial Acceptance Date with respect to each Fund,
you shall have received from counsel to the Distributor, if so
requested, such opinion or opinions, dated the Initial Acceptance Date,
with respect to the issuance and sale of the Shares, the relevant
Registration Statement, Prospectus and SAI and other related matters as
you may reasonably require, and the Trust shall have furnished to such
counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
(c) There shall not have been any change, or any development
involving a prospective change, in or affecting the Trust the effect of
which in any case is, in your good faith judgment, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering of Shares of the Funds as contemplated by this Agreement.
(d) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; (iii) the outbreak or
escalation of hostilities involving the United States or the declaration
of a national
-11-
emergency or war if the effect of any such event specified in this Clause
(iii) in your judgment makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares of a Fund on the terms and
in the manner contemplated in any Prospectus.
(e) The Trust shall have furnished to you such further information,
certificates and documents as you may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions, certificates or letters mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you, this Agreement and all your
obligations hereunder may be cancelled by you. In the event of such
cancellation, the Trust shall remain liable for the expenses set forth in
Section 8.
8. Expenses.
--------
(a) The Trust will pay (or will enter into arrangements, including
Participation Agreements, providing that parties other than you will pay) all
fees and expenses:
(1) in connection with the preparation, setting in type and
filing of the Registration Statements (including Prospectuses and SAIs) under
the Securities Act or the Investment Company Act, or both, and any amendments or
supplements thereto that may be made from time to time;
(2) in connection with the exemption, registration,
notification and qualification of Shares of the Funds for sale in the various
jurisdictions in accordance with Section 6(c) of this Agreement (including
registering the Trust as a broker or dealer or any officer of the Trust or other
person as agent or salesman of the Trust in any such jurisdictions);
(3) of preparing, setting in type, printing and mailing any
notice, proxy statement, report, Prospectus, SAI or other communication to
shareholders in their capacity as such;
(4) of preparing, setting in type, printing and mailing
Prospectuses annually, and any supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares of
the Funds resulting from the acceptance by you of orders to purchase Shares of
the Funds placed with you by investors, including the expenses of printing and
mailing confirmations of such purchase orders and the expenses of
-12-
printing and mailing a Prospectus included with the confirmation of such order
and, if requested by the purchaser, an SAI;
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to you in this Section 8;
(8) of wiring funds in payment of Shares purchases or in satisfaction
of redemption or repurchase requests, unless such expenses are paid for by the
investor or shareholder who initiates the transaction;
(9) of the cost of printing and postage of business reply envelopes
sent to shareholder;
(10) of one of more CRT terminals connected with the computer
facilities of the Transfer Agent other than the portion allocated to you in this
Section 8;
(11) permitted to be paid or assumed by any Fund or Funds, or any Class
thereof pursuant to (a) Rule 12b-1 Plan adopted by such Fund or Funds 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 or (b) any other plan adopted by a Fund providing for account
adminstration or shareholder liaison services (a "Service Plan");
(12) of the expenses of setting in type, printing and postage of any
periodic newsletter to shareholder other than the portion allocated to you in
this Section 8; and
(13) of the salaries and overhead of persons employed by you as
shareholder representatives other than the portion allocated to you in this
Section 8.
(b) Except as provided in any Rule 12b-1 Plan or Service Plan, 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 of the Funds to the
extent not paid for by the Trust of any Participating Insurance Company under a
Participation Agreement;
-13-
(2) of preparing, setting in type, printing and mailing any
other literature used by you in connection with the offering of Shares
of the Funds to the extent not paid for by the Trust or any
Participating Insurance Company under a Participation Agreement;
(3) of advertising in connection with the offering of Shares of
the Funds to the extent not paid for by the Trust or any Participating
Insurance Company under a Participation Agreement;
(4) incurred in connection with your registration as a broker
or dealer or the registration or qualification of your officers,
partners, 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 or Prospectuses;
(6) of that portion of the expense of setting in type, printing
and postage of any periodic newsletter to shareholders attributable to
promotional material included in such newsletter at your request
concerning investment companies other than the Trust or concerning the
Trust to the extent you are required to assume the expense thereof
pursuant to this Section 8, except such material which is limited to
information, such as listings of other investment companies and their
investment objectives, given in connection with the exchange privilege
as from time to time described in the Prospectuses;
(7) of that portion of the salaries and overhead of persons
employed by you as a shareholder representatives attributable to the
time spent by such persons in responding to requests from investors, but
not shareholders, for information about the Trust;
(8) of any activity which is primarily intended to result in
the sale of Shares of any Class of a Fund, unless a 12b-1 Plan shall be
in effect which provides that shares of such Classes shall bear some or
all of such expenses, in which case such Class shall bear such expenses
in accordance with such Plan; and
(9) of that portion of one or more CRT terminals connected with
the computer facilities of the Transfer Agent attributable to your use
of such terminal(s) to gain access to such of the Transfer Agent's
records as also serve as your records.
-14-
Expenses which are to be allocated between you and the Trust
shall be allocated pursuant to reasonable procedures or formulae
mutually agreed upon from time to time, which procedures or
formulae shall to the extent practicable reflect studies of
relevant empirical data.
9. Indemnification and Contribution.
--------------------------------
(a) The Trust will indemnify you and hold you harmless against
any losses, claims, damages or liabilities, to which you may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, Registration
Statement, Prospectus, or SAI or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement therein not
misleading, and will reimburse you for any legal or other expenses
reasonably incurred by you in connection with investigating or defending
any such action or claim; provided, however, that the Trust shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon untrue statement or alleged
untrue statement or omission or alleged omission made in any
Registration Statement, any Preliminary Prospectus, or any Prospectus or
SAI in reliance upon and in conformity with written information
furnished to the Trust by you expressly for use therein.
(b) You will indemnify and hold harmless the trust against any
losses, claims damages or liabilities to which the trust may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof), arise
out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, any
Preliminary Prospectus, or any Prospectus or SAI, or arise out of or are
based upon 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 each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Registration Statement, any
Preliminary Prospectus, or any Prospectus or SAI in reliance upon and in
conformity with written information furnished to the Trust by you
expressly for use therein; and will reimburse the Trust for any legal or
other expenses reasonably incurred by the Trust in connection with
investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
-15-
commencement thereof the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable
to, or insufficient to hold harmless, an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Trust on the one hand and you on the other from the offering of
the Shares of the Fund or Funds in respect of which such losses, claims, damages
or liabilities (or actions in respect thereof) arose. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Trust on the one hand and you on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relative
equitable considerations. The relative benefits received by the Trust on the one
hand and you on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares of the relevant Funds (before
deducting expenses) received by the Trust bear to the total compensation
received by you in selling Shares of such Funds under this Agreement, including
any sales charge as set forth in the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Trust on the one hand or
you on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Trust and you agree that it would not be just and equitable if the
contributions pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), you shall not be required to contribute any amount in excess of
the
-16-
amount by which the total price at which the Shares of the relevant Funds sold
by you and distributed to the public were offered to the public exceeds the
amount of any damages which you have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Trust under this Section 9 shall be in
addition to any liability which the Trust may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls you
within the meaning of the Securities Act; and your obligations under this
Section 9 shall be in addition to any liability which you may otherwise have
and shall extend, upon the same terms and conditions, to each trustee or officer
of the Trust (including any person who, with his consent, is named in the
relevant Registration Statement as about to become a trustee of the Trust) and
to each person, if any, who controls the Trust within the meaning of the
Securities Act.
10. Term.
----
(a) This Agreement shall commence on the date first set forth above and
continue in effect until June 30, 1999 and then for successive annual periods
after June 30, 1999, provided such continuance after the initial term is
specifically approved at least annually by (i) the Trustees of the Trust or (ii)
a vote of a majority (as defined in the Investment Company Act) of the Fund's
outstanding voting securities, provided that in either event the continuance is
also approved by a vote of a majority of the Trustees of the Trust who are not
interested persons (as defined in the Investment Company Act) of the Trust or
any party to this Agreement, by vote cast in person at a meeting called for
the purpose of voting on such approval. The Trust authorizes you, if and when
you so determine, to assign to a third party any payments with respect to one or
more Classes of Shares that you are entitled to receive for your services
hereunder, including any payments of initial or deferred sales charges or
payments in accordance with a Rule 12b-1 or Service Plan so long as such Plan is
in effect, free and clear of any offset, defense or counterclaim the Trust may
have against you and except to the extent that any change or modification after
the date hereof of (x) the provisions of the Investment Company Act, the Rules
and Regulations thereunder or other applicable law or (y) any interpretation of
the Investment Company Act, the Rules and Regulations thereunder or other
applicable law shall restrict your right to make such transfer free and clear of
any offset, defense or counterclaim.
(b) The sale of Shares of the Funds in accordance with the terms of
this Agreement shall be subject to termination or suspension in the absolute
discretion of the Trust, by notice given to you as set forth in Section 12
hereof.
-17-
(c) This Agreement will terminate automatically in the event of its
assignment (as defined in the Investment Company Act).
11. Representation and Indemnities to Survive. The respective agreements,
-----------------------------------------
representations, warranties, indemnities and other statements of the Trust
and you set forth in or made pursuant to this Agreement will, to the extent
permitted by applicable law, remain in full force and effect, regardless of
any investigation made by or on behalf of you, any Authorized Dealer or the
Trust, or any of the controlling persons referred to in Section 9 hereof,
and will survive the offer of the Shares of the Funds. The provisions of
Section 8, 9 and 11 hereof and your right to receive any contingent deferred
sale charges shall, to the extent permitted by applicable law, survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only
-------
on receipt, and, if sent to you, mailed, delivered or telegraphed and
confirmed to you at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Registration Department (Distributors - Xxxxxxx Sachs
Funds) or, if sent to the Trust, mailed, delivered or telegraphed and
confirmed to it at Xxxxxxx Xxxxx Trust, 0000 Xxxxx Xxxxx, Xxxxxxx, Xxx.
00000, Attention: Secretary.
13. Affiliates. The Trust recognizes that your partners, officers and employees
----------
may from time to time serve as directors, trustees, officers and employees
of corporations and business entities (including other investment
companies), and that you or your affiliates may enter into distribution or
other agreements with other corporations and business entities.
14. Successors. This Agreement will inure to the benefit of and be binding upon
----------
the parties hereto and their respective successors and, to the extent set
forth herein, each of the officers, trustees and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
16. Miscellaneous. The captions in this Agreement are included for 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 Sachs Variable Insurance Trust" is the designation of the
Trustees for the time being under an Agreement and Declaration of Trust
dated September 16, 1997, as amended from time to time, and all persons
dealing with the Trust must look solely to the property of the Trust for the
enforcement of any claims against the Trust as neither the
-18-
Trustees, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Trust. No series of the
Trust shall be liable for any claims against any other series of the
Trust.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Trust, and, to the extent set forth herein, shall be for the benefit of each
Authorized Dealer.
Very truly yours,
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
By: /s/ Xxxxxxx X. Grip
---------------------------------
Name: Xxxxxxx X. Grip
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
/s/ Xxxxx X. Xxxx
-----------------------
(Xxxxxxx, Xxxxx & Co.)
Xxxxx X. Xxxx
-19-
EXHIBIT A
---------
Series ("Funds") of XXXXXXX XXXXX VARIABLE INSURANCE TRUST, a Delaware business
-------------------------------------------------------------------------------
trust (the "Trust")
-------------------
XXXXXXX SACHS FIXED INCOME FUNDS:
--------------------------------
Xxxxxxx Xxxxx Global Income Fund
Xxxxxxx Sachs High Yield Fund
Xxxxxxx Xxxxx Short Duration Government Fund
XXXXXXX SACHS EQUITY FUNDS:
--------------------------
Xxxxxxx Xxxxx CORE Large Cap Growth Fund
Xxxxxxx Sachs CORE U.S. Equity Fund
Xxxxxxx Xxxxx CORE Small Cap Equity Fund
Xxxxxxx Sachs Growth and Income Fund
Xxxxxxx Xxxxx Capital Growth Fund
Xxxxxxx Sachs International Equity Fund
Xxxxxxx Xxxxx Mid Cap Equity Fund
Xxxxxxx Sachs CORE Large Cap Value Fund
Xxxxxxx Xxxxx CORE International Equity Fund
XXXXXXX SACHS ASSET ALLOCATION PORTFOLIOS:
-----------------------------------------
Xxxxxxx Xxxxx Conservative Strategy Portfolio
Xxxxxxx Sachs Balanced Strategy Portfolio
Xxxxxxx Xxxxx Growth and Income Strategy Portfolio
Xxxxxxx Sachs Growth Strategy Portfolio
Xxxxxxx Xxxxx Aggressive Growth Strategy Portfolio
-20-
