DISTRIBUTION AGREEMENT
NATIONS SEPARATE ACCOUNT TRUST
THIS AGREEMENT is made as of January 1, 2003, by and between NATIONS
SEPARATE ACCOUNT TRUST, a Delaware statutory trust (the "Trust") on behalf of
each series of the Trust now or hereafter identified on Schedule I (each, a
"Fund" and collectively, the "Funds"), and BACAP DISTRIBUTORS, LLC, a North
Carolina limited liability company (the "Distributor"). Absent written
notification to the contrary by either the Trust or the Distributor, each new
investment portfolio established in the future shall automatically become a
"Fund" for all purposes hereunder and shares of each new class established in
the future shall automatically become "Shares" for all purposes hereunder as if
set forth on Schedule I.
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust desires to retain the Distributor as the exclusive
distributor of the units of beneficial interest in all classes of shares
("Shares") of the Funds, and the Distributor is willing to render such services;
and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and is a member of
the National Association of Securities Dealers, Inc. (the "NASD").
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. SERVICES AS DISTRIBUTOR.
1.1. The Distributor will act as agent for the distribution of
Shares in accordance with any instructions of the Trust's Board of Trustees and
with the Trust's registration statement then in effect under the Securities Act
of 1933, as amended (the "1933 Act"), and will transmit promptly any orders
properly received by it for the purchase or redemption of Shares to the Trust or
its transfer agent, or their designated agents. As used in this Agreement, the
term "registration statement" shall mean any registration statement,
specifically including, among other items, any then-current prospectus together
with any related then-current statement of additional information, filed with
the SEC with respect to Shares, and any amendments and supplements thereto which
at any time shall have been filed.
1.2. The Distributor agrees to use appropriate efforts to solicit
orders for the sale of Shares and will undertake such advertising and promotion,
as it believes appropriate in connection with such solicitation. The Distributor
agrees to offer and sell Shares at the applicable public offering price or net
asset value next determined after an order is received. The Trust understands
that the Distributor is and may in the future be the distributor of shares of
other investment company portfolios including portfolios having investment
objectives similar to those of the Funds. The Trust further understands that
existing and future investors in the Funds may
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invest in shares of such other portfolios. The Trust agrees that the
Distributor's duties to such portfolios shall not be deemed in conflict with its
duties to the Trust under this paragraph 1.2.
1.3. The Distributor shall, at its own expense, finance such
activities as it deems reasonable and which are primarily intended to result in
the sale of Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current shareholders, and the printing and mailing of
sales literature. The Distributor shall be responsible for reviewing and
providing advice on all sales literature (e.g., advertisements, brochures and
shareholder communications) with respect to each of the Funds, and shall file
with the NASD or the appropriate regulators all such materials as are required
to be filed under applicable laws and regulations in compliance with such laws
and regulations. In addition, the Distributor will provide sufficient personnel,
during normal business hours, reasonably necessary to respond to telephone
questions with respect to the Funds.
1.4. In connection with all matters relating to this Agreement,
the Distributor agrees to comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted pursuant to the 1933 Act, the 1934 Act, the 1940 Act, the regulations of
the NASD and all other applicable federal and state laws, rules and regulations.
1.5. Whenever in their judgment such action is warranted by
unusual market, economic or political conditions, or by other circumstances of
any kind, the Trust's officers may decline to accept any orders for, or make any
sales of Shares until such time as those officers deem it advisable to accept
such orders and to make such sales.
1.6. The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take, or cause
to be taken, all actions that may be reasonably necessary in connection with the
qualification of Shares for sale in such states as the Trust directs and in such
states as the Distributor may recommend to the Trust which the Trust approves,
and the Trust shall pay all fees and other expenses incurred in connection with
such qualification.
1.7. The Trust shall furnish from time to time, for use in
connection with the sale of Shares, such information with respect to the Funds
and Shares as the Distributor may reasonably request and the Trust warrants that
the statements contained in any such information shall fairly show or represent
what they purport to show or represent. The Trust shall also furnish the
Distributor upon request with: (a) audited annual and unaudited semi-annual
statements of the Trust's books and accounts with respect to each Fund, and (b)
from time to time such additional information regarding the Funds' financial
condition as the Distributor may reasonably request.
1.8. The Distributor may be reimbursed for all or a portion of the
expenses described above and/or compensated for services rendered hereunder, to
the extent permitted by a distribution plan adopted by the Trust on behalf of a
Fund pursuant to Rule 12b-1 under the 1940 Act. No provision of this Agreement
shall be deemed to prohibit any payments by a Fund to the Distributor or by a
Fund or the Distributor to banks, broker/dealers or other financial institutions
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through whom Shares of the Fund are sold where such payments are made under a
distribution plan adopted by the Trust on behalf of such Fund pursuant to Rule
12b-1 under the 1940 Act. In addition, the Distributor shall be entitled to
retain any front-end sales charge imposed upon the sale of Shares (and reallow a
portion thereof) as specified in the Trust's registration statement and the
Trust shall pay to the Distributor the proceeds from any contingent deferred
sales charge imposed on the redemption of Shares as specified in the Trust's
registration statement.
1.9. The Distributor shall prepare reports for the Board of
Trustees of the Trust regarding its activities under this Agreement as from time
to time shall be reasonably requested by the Board, including reports regarding
the use of Rule 12b-1 payments received by the Distributor, if any.
1.10. The Distributor shall enter into written agreements with
banks, broker/dealers and other financial institutions, based on such form(s) of
sales support agreements as may be approved by the Board of Trustees from time
to time. The Distributor also may enter into such agreements based on such
additional forms of agreement as it deems appropriate, provided that the
Distributor determines that the Trust's and the Funds' responsibility or
liability to any person on account of any acts or statements of any such selling
agent under any such sales support agreement do not exceed their responsibility
or liability under the form(s) approved by the Board of Trustees, and provided
further that the Distributor determines that the overall terms of any such sales
support agreement are not materially less advantageous to the Trust than the
overall terms of the form(s) approved by the Board of Trustees. In entering into
and performing such agreements, the Distributor shall act as principal and not
as agent for the Trust or any Fund.
2. REPRESENTATIONS; INDEMNIFICATION.
2.1. The Trust represents to the Distributor that all registration
statements filed by the Trust with the SEC under the 1933 Act, with respect to
Shares have been prepared in conformity with the requirements of the 1933 Act
and rules and regulations of the SEC thereunder.
The Trust represents and warrants to the Distributor that any
registration statement, when such registration statement becomes effective, will
contain all statements required to be stated therein in conformity with the 1933
Act and the rules and regulations of the SEC; that all statements of fact
contained in any such registration statement will be true and correct when such
registration statement becomes effective; and that no registration statement,
when such registration statement becomes effective, will include 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 not misleading to a
purchaser of Shares. The Trust authorizes the Distributor and authorized banks,
broker/dealers and other financial institutions to use any prospectus or
statement of additional information in the form furnished from time to time in
connection with the sale of Shares and represented by the Trust as being the
then-current form of prospectus or then-current form of statement of additional
information.
2.2. The Trust agrees to indemnify, defend and hold the
Distributor, its several officers and directors, and any person who controls the
Distributor within the meaning of
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Section 15 of the 1933 Act free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which the Distributor, its officers and directors, or
any such controlling person, may incur under the 1933 Act or under common law or
otherwise, arising out of or based upon any untrue statement, or alleged untrue
statement, of a material fact contained in any registration statement or arising
out of or based upon any omission, or alleged omission, to state a material fact
required to be stated in any registration statement or necessary to make any
statement in such documents not misleading; provided, however, that the Trust's
agreement to indemnify the Distributor, its officers and directors, and any such
controlling person shall not be deemed to cover any claims, demands, liabilities
or expenses arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in any registration statement or in any
financial or other statements in reliance upon and in conformity with any
information furnished to the Trust by the Distributor or any affiliate thereof
and used in the preparation thereof; and further provided that the Trust's
agreement to indemnify the Distributor, its officers and directors, and any such
controlling person shall not be deemed to cover any liability to the Trust or
its shareholders to which the Distributor, its officers and directors, or any
such controlling person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of the
Distributor's, its officer's or director's, or any such controlling person's
duties, or by reason of the Distributor's, its officer's or director's, or any
such controlling person's reckless disregard of its obligations and duties under
this Agreement.
Notwithstanding the foregoing, this indemnity agreement, to the
extent that it might require indemnity of any person who is an officer or
director of the Distributor or any person who controls the Distributor and who
is also an officer or Trustee of the Trust, shall not inure to the benefit of
such officer, director or controlling person unless a court of competent
jurisdiction shall determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy as expressed in
the 1933 Act or the 1940 Act.
The Trust's agreement to indemnify the Distributor, its officers
and directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Trust's being notified of any action brought against the
Distributor, its officers or directors, or any such controlling person, such
notification to be given in writing and to be transmitted by personal delivery,
first class mail, overnight courier, facsimile or other electronic means to the
address or facsimile number contained in paragraph 9 of this Agreement, or to
such other addresses or facsimile numbers as the parties hereto may specify from
time to time in writing and such notification to be sent to the Trust within a
reasonable period of time after the summons or other first legal process shall
have been served. The failure to so notify the Trust of any such action shall
not relieve the Trust from any liability which the Trust may have to the person
against whom such action is brought by reason of any such untrue, or allegedly
untrue, statement or omission, or alleged omission, otherwise than on account of
the Trust's indemnity agreement contained in this paragraph 2.2. The Trust will
be entitled to assume the defense of any suit brought to enforce any such claim,
demand or liability, but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Trust and approved by the Distributor,
which approval shall not unreasonably be withheld. In the event the Trust elects
to assume the defense of any such suit and retain counsel of good standing
approved by the Distributor, the
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defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case the Trust does not elect
to assume the defense of any such suit, or in case the Distributor reasonably
does not approve of counsel chosen by the Trust, the Trust will reimburse the
Distributor, its officers and directors, or the controlling person or persons
named as defendant or defendants in such suit, for the fees and expenses of any
counsel retained by the Distributor or them.
The Trust's indemnification agreement contained in this paragraph
2.2 and the Trust's representations and warranties in this Agreement shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Distributor, its officers or directors, or any
controlling person, and shall survive the delivery of any Shares. This agreement
of indemnity will inure exclusively to the Distributor's benefit, to the benefit
of its several officers and directors, and their respective estates, and to the
benefit of the controlling persons and their successors. The Trust agrees
promptly to notify the Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or Trustees in connection
with the issue and sale of any Shares.
2.3. The Distributor agrees to indemnify, defend and hold the
Trust, its several officers and Trustees, and any person who controls the Trust
within the meaning of Section 15 of the 1933 Act free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
costs of investigation or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Trust, its officers or
Trustees or any such controlling person, may incur under the 1933 Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust, its officers or Trustees, or such controlling person
resulting from such claims or demands, shall arise out of or be based upon (a)
any untrue, or alleged untrue, statement of a material fact contained in
information furnished by the Distributor or any affiliate thereof to the Trust
or its counsel and used in the Trust's registration statement, or shall arise
out of or be based upon any omission, or alleged omission, to state a material
fact in connection with such information furnished by the Distributor or any
affiliate thereof to the Trust or its counsel required to be stated in such
answers or necessary to make such information not misleading or (b) any alleged
willful misfeasance, bad faith or gross negligence in the performance of the
Distributor's obligations and duties under the Agreement or by reason of its
alleged reckless disregard thereof. The Distributor's agreement to indemnify the
Trust, its officers and Trustees, and any such controlling person, as aforesaid,
is expressly conditioned upon the Distributor's being notified of any action
brought against the Trust, its officers or Trustees, or any such controlling
person, such notification to be given in writing and to be transmitted by
personal delivery, first class mail, overnight courier, facsimile or other
electronic means to the address or facsimile number contained in paragraph 9 of
this Agreement, or to such other addresses or facsimile numbers as the parties
hereto may specify from time to time in writing and such notification to be sent
to the Distributor by the person against whom such action is brought, within a
reasonable period of time after the summons or other first legal process shall
have been served. The Distributor shall have the right to control the defense of
such action, with counsel of good standing of its own choosing, approved by the
Board of Trustees of the Trust, if such action is based solely upon such alleged
misstatement or omission on the Distributor's part or any affiliate thereof, and
in any other event the Trust, its officers or Trustees or such controlling
person shall each have the right to participate in the
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defense or preparation of the defense of any such action. The failure to so
notify the Distributor of any such action shall not relieve the Distributor or
any affiliate thereof from any liability which the Distributor or any affiliate
thereof may have to the Trust, its officers or Trustees, or to such controlling
person by reason of any such untrue or alleged untrue statement, or omission or
alleged omission, or other conduct covered by this indemnity agreement,
otherwise than on account of the Distributor's indemnity agreement contained in
this paragraph 2.3.
2.4. No Shares shall be offered by either the Distributor or the
Trust under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Trust if and so
long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the 1933 Act, or if and so long as a current prospectus, as required by Section
10(b) of the 1933 Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph 2.4 shall in any way restrict or have any
application to or bearing upon the Trust's obligation to repurchase Shares from
any shareholder in accordance with the provisions of the Trust's prospectus or
Declaration of Trust.
2.5. The Trust agrees to advise the Distributor as soon as
reasonably practicable of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement then in effect or of the
initiation of any proceeding for that purpose.
3. CONFIDENTIALITY.
The Distributor agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Trust all records and
other information relative to the Funds and/or the Trust and its prior, present
or potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except when so requested by the Trust or after prior notification to and
approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where the Distributor may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities.
In accordance with Regulation S-P, the Distributor and its
affiliates will not disclose any non-public personal information, as defined in
Regulation S-P, received from the Trust or any Fund regarding any shareholder;
provided, however, that the Distributor and its affiliates may disclose such
information to any party as necessary in the ordinary course of business to
carry out the purposes for which such information was disclosed to the
Distributor and its affiliates, or as may be permitted by law. The Distributor
agrees to use reasonable precautions to protect and prevent the unintentional
disclosure of such non-public personal information.
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4. ANTI-MONEY LAUNDERING PROGRAM.
The Distributor represents and warrants that it (a) has adopted an
anti-money laundering compliance program ("AML Program") that satisfies the
requirements of all applicable laws and regulations; and (b) will notify the
Trust promptly if an inspection by the appropriate regulatory authorities of its
AML Program identifies any material deficiency, and will promptly remedy any
material deficiency of which it learns.
5. LIMITATIONS OF LIABILITY.
Except as provided in paragraph 2.3, the Distributor shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust or any Fund in connection with matters to which this Agreement
relates, except a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from reckless
disregard of its obligations and duties under this Agreement.
6. TERM.
This Agreement shall become effective on the date of its execution
and, unless sooner terminated as provided herein, shall continue in effect for a
period of two years from the date written above. This Agreement shall thereafter
continue from year to year, provided such continuance is specifically approved
at least annually by (i) the Trust's Board of Trustees, or (ii) a vote of a
majority (as defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting securities of
the Fund, provided that in either event the continuance is also approved by the
majority of the Trust's Trustees who are not parties to this Agreement or
interested persons (as defined in the ▇▇▇▇ ▇▇▇) of any such party, by vote cast
in person at a meeting called for the purpose of voting on such approval. This
Agreement is not assignable and is terminable with respect to a Fund, without
penalty, on not less than sixty (60) days' written notice, by the Trust's Board
of Trustees, by vote of a majority (as defined in the ▇▇▇▇ ▇▇▇) of the
outstanding voting securities of such Fund, or by the Distributor. This
Agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
7. RELEASE
The names "Nations Separate Account Trust" and "Trustees of
Nations Separate Account Trust" refer respectively to the Trust created by the
Declaration of Trust and the Trustees as Trustees but not individually or
personally. All parties hereto acknowledge and agree that any and all
liabilities of the Trust arising, directly or indirectly, under this Agreement
will be satisfied solely out of the assets of the Trust and that no Trustee,
officer or shareholder shall be personally liable for any such liabilities. All
persons dealing with any Fund of the Trust must look solely to the property
belonging to such Fund for the enforcement of any claims against the Trust.
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8. MISCELLANEOUS.
8.1. 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 an enforcement of the change, waiver, discharge or
termination is sought.
8.2 This Agreement shall be governed by the laws of the State of
Delaware.
9. NOTICES.
Any notices under this Agreement shall be in writing, addressed
and delivered or mailed postage paid to such address as may be designated for
the receipt of such notice. Until further notice, it is agreed that the address
of the Trust shall be ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary, and that of the
Distributor shall be ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President.
10. COUNTERPARTS.
10.1 This Agreement may be executed in any manner of counterparts,
each of which shall be deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
NATIONS SEPARATE ACCOUNT TRUST
on behalf of the Funds
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
BACAP DISTRIBUTORS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Chief Operating Officer
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SCHEDULE I
NATIONS SEPARATE ACCOUNT TRUST:
1. Nations Asset Allocation Portfolio
2. Nations Capital Growth Portfolio
3. Nations High Yield Bond Portfolio
4. Nations International Value Portfolio
5. Nations ▇▇▇▇▇▇▇ Focused Equities Portfolio
6. Nations ▇▇▇▇▇▇▇ Growth Portfolio
7. Nations ▇▇▇▇▇▇▇ International Opportunities Portfolio
8. Nations ▇▇▇▇▇▇▇ 21st Century Portfolio
9. Nations MidCap Growth Portfolio
10. Nations Small Company Portfolio
11. Nations Value Portfolio
Approved: October 8, 2002
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