Exhibit (6)(a)
DISTRIBUTION AGREEMENT
This Agreement is made as of this 7th day of October, 1996 by and
between The Xxxxxxxx Variable Annuity Fund, a Delaware business trust (the
"Trust") and BISYS Fund Services Limited Partnership, d/b/a BISYS Fund
Services ("BISYS").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), as an open-end management
investment company;
WHEREAS, the Trust is currently offering shares of beneficial interest
(the "Shares") representing interests in the investment portfolios ("Series")
listed on Schedule 1 attached hereto;
WHEREAS, BISYS is a securities firm engaged inter alia in the business
of selling shares of investment companies either directly to investors or
through other securities dealers;
WHEREAS, the Trust desires to retain BISYS as the distributor
("Distributor") for its Series to provide for the sale and distribution of the
Shares, and BISYS is prepared to provide such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby the parties hereto
agree as follows:
Section 1. Appointment as Distributor.
(a) The Trust hereby appoints BISYS as the exclusive
Distributor and representative of the Trust to act as agent for the sale and
distribution of Shares of each Series described in the currently effective
prospectuses (hereinafter referred to as "Prospectuses" or a "Prospectus") and
registration statement ("Registration Statement") of the Trust. The Trust
during the term of this Agreement shall sell its Shares through BISYS upon the
terms and conditions set forth below.
(b) BISYS shall use its best efforts to solicit orders for the
sale of Shares. It is contemplated that BISYS will enter into sales or
servicing agreements with securities dealers, financial institutions and other
industry professionals, such as investment advisers, accountants and estate
planning firms, and in so doing will act only on its own behalf as principal.
No securities dealer or other person who enters into a servicing agreement
with BISYS shall be authorized to act as an agent for
the Trust or its Series in connection with the offering or sale of Shares
to the public or otherwise.
(c) BISYS shall prepare or review, provide advice with respect
to, and file with the federal and state agencies or other organizations as
required by federal, state, and other applicable laws and regulations, all
sales literature (advertisements, brochures and shareholder communications)
for each of the Series and any classes of Shares thereof.
(d) In the event that the Trust establishes one or more
additional investment portfolios other than the Series with respect to which
it desires to retain BISYS to act as the exclusive Distributor and
representative hereunder, the Trust shall notify BISYS in writing. If BISYS is
willing to render such services it shall notify the Trust in writing
whereupon, subject to such approval as may be required pursuant to Section 13
hereof, or any necessary regulatory or shareholder approvals, such portfolio
shall become a Series hereunder and the compensation payable by such new
Series to BISYS will be as agreed in writing at the time.
Section 2. Exclusive Nature of Duties.
BISYS shall be the exclusive representative of the Trust to act
as sponsor and Distributor, except that:
(a) The Trust may, upon written notice to BISYS, from time to
time designate other principal underwriters and distributors of Shares of one
or more Series with respect to areas other than the United States as to which
BISYS may have expressly waived in writing its right to act as such. If such
designation is deemed exclusive, the right of BISYS under this Agreement to
act as agent for the distribution of Shares in the areas so designated shall
terminate, but this Agreement shall remain otherwise in full effect until
terminated in accordance with the other provisions hereof;
(b) The exclusive rights granted to BISYS to act as agent for
the distribution of Shares of the Trust shall not apply to Shares of any
Series issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Trust or the
acquisition by purchase or otherwise of all (or substantially all) the assets
or the outstanding shares of any such company by the Trust;
(c) Such exclusive rights shall also not apply to Shares issued
by the Trust pursuant to reinvestment of dividends and capital gains
distributions; and
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(d) The Trust acknowledges that the persons employed by BISYS
to assist in the performance of its duties under this Agreement may not devote
their full time to such service and nothing contained in this Agreement shall
be deemed to limit or restrict BISYS or any of its affiliates' right to engage
in and devote time and attention to other businesses or to render services of
whatever kind or nature.
Section 3. Distribution of Shares of the Trust.
(a) BISYS shall have the right to solicit unconditional orders
for Shares of the Trust. The price which investors shall pay for the Shares so
purchased from the Trust shall be determined as set forth in Section
3(b) hereof.
(b) The public offering price of the Shares of any Series,
i.e., the price per share at which BISYS may offer Shares to the public, shall
be the public offering price as set forth in the Prospectus relating to such
Shares, which shall be the net asset value thereof, as determined in
accordance with the description thereof contained in the Prospectus relating
to such Shares, plus any sales charge as set forth in the Prospectus.
(c) The Trust, or any agent of the Trust designated in writing
by it, shall be promptly advised of all purchase and redemption orders for
Shares received by BISYS. Procedures may be established by the Trust and BISYS
whereby purchase orders for Shares of any Series are presented directly to the
Trust or an agent designated by the Trust upon the condition that in such
cases it shall be deemed that the sale of the Shares to be purchased is made
pursuant to Section 3 hereof. Any order may be rejected by the Trust in its
sole discretion or by BISYS, as the case may be, provided, however, that BISYS
will not arbitrarily or without reasonable cause refuse to transmit orders for
the purchase of Shares. The Trust (or its agent) will confirm orders in
accordance with the rules and regulations, or any exemptive order, of the
Securities and Exchange Commission, and will make appropriate book entries
pursuant to the instructions of BISYS. Purchase orders are effective when
Federal Funds become available to the Trust or as otherwise stated in the
Prospectus. BISYS agrees to cause such payment and such instructions received
by it to be delivered promptly to the Trust (or its agent).
Section 4. Redemption of Shares by the Trust.
(a) Any of the outstanding Shares may be tendered for
redemption at any time, and the Trust shall redeem the Shares so tendered in
accordance with its obligations and rights as set forth in its Amended and
Restated Declaration of Trust, as
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amended from time to time, and in accordance with the applicable provisions
contained in the Prospectus relating to such Shares. The Trust shall pay the
total amount of the redemption price pursuant to the instructions of BISYS
as the case may be, and in accordance with the terms set forth in the
Prospectus relating to the Shares being redeemed.
(b) If any Shares sold by the Trust are redeemed or repurchased
by the Trust or by BISYS as agent or are tendered for redemption within seven
business days after the date of confirmation of the original purchase of said
Shares, BISYS, as the case may be, shall forfeit any amount above the net
asset value which it may have received in respect of such Shares, provided
that the portion of such amount reallowed by BISYS to broker/dealers or other
persons shall be repayable to the Trust only to the extent recovered by BISYS
from the broker/dealer or other person concerned. BISYS shall include in the
form of agreement with such broker/dealers and other persons a corresponding
provision for the forfeiture by them of their concession with respect to
Shares sold by them or their principals and redeemed or repurchased by the
Trust or by BISYS, as the case may be, as agent (or tendered for redemption)
within seven business days after the date of confirmation of such initial
purchases.
(c) The right of a shareholder to redeem Shares of any Series,
or to receive payment with respect to any such redemption, upon the
presentation of properly submitted redemption requests in accordance with the
procedures set forth in the Prospectus relating to such Shares, may only be
suspended in accordance with the provisions of the Investment Company Act.
Section 5. Duties and Representations of the Trust.
(a) The Trust shall furnish BISYS from time to time, for use in
connection with the sale of Shares, such information with respect to the Trust
or any relevant Series and the Shares as BISYS may reasonably request.
(b) The Trust shall take, from time to time, all necessary
action to register Shares of each Series under the Securities Act of 1933, as
amended, ("Securities Act") to the end that there will be available for sale
such number of Shares as BISYS may reasonably be expected to sell.
(c) The Trust shall use its best efforts to qualify and
maintain the qualification of an appropriate number of Shares of each Series
for sale under the securities laws of such states as BISYS and the Trust may
approve. Any such qualification may
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be withheld, terminated or withdrawn by the Trust at any time in its
discretion. As provided in Section 9(c) hereof, the expense of qualification
and maintenance of qualification shall be borne by the Trust. BISYS shall
furnish such information and other material relating to its respective affairs
and activities as may be required by the Trust in connection with such
qualifications. The Trust will not confirm the sale of any Shares in any
jurisdiction in which the Shares are not qualified for offer and sale unless
the offer and sale by BISYS under the circumstances is exempt from
qualification.
(d) The Trust represents to BISYS that all Registration
Statements and Prospectuses filed by the Trust with the Securities and
Exchange Commission under the Securities Act with respect to the Shares have
been carefully prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder.
The Trust represents and warrants to BISYS that any Registration Statement and
Prospectus, when such Registration Statement becomes effective, will contain
all statements required to be stated therein in conformity with said Act and
the rules and regulations of said Commission; that all statements of fact
contained in any such Registration Statement and Prospectus will be true and
correct when such Registration Statement becomes effective; and that neither
any Registration Statement nor any Prospectus 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 unless such statement or omission was
made in reliance upon, and in conformity with, written information furnished
to the Trust in connection therewith by or on behalf of BISYS, as the case may
be. The Trust shall not file any amendment to any Registration Statement or
supplement to any Prospectus without giving BISYS reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement shall in
any way limit the Trust's right to file at any time such amendments to any
Registration Statement or supplements to any Prospectus, of whatever
character, as the Trust may deem advisable, such right being in all respects
absolute and unconditional.
(e) The Trust agrees to advise BISYS promptly in writing:
(i) of any request by the Securities and Exchange
Commission for amendments to the Registration Statement or
Prospectuses then in effect or for additional information;
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(ii) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the
effectiveness of the Registration Statement or Prospectuses
then in effect or the initiation of any proceeding for that
purpose;
(iii) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement
or Prospectuses then in effect or which requires the making of
a change in such Registration Statement or Prospectus in order
to make the statements therein not misleading;
(iv) of all actions of the Securities and Exchange
Commission with respect to any amendments to any Registration
Statement or Prospectuses which may from time to time be filed
with the Securities and Exchange Commission;
(v) of the qualification or withdrawal or termination of
qualification for sale of Shares of any Series in any
jurisdiction; and
(vi) annually on the anniversary of the date of
qualification of Shares of any Series for sale in any
jurisdiction whether or not the Shares continue to be qualified
for sale in such jurisdiction and the number of Shares so
qualified for sale.
Section 6. Duties of BISYS as the Distributor.
(a) BISYS shall devote reasonable time and effort as determined
by it to effect sales of Shares of the Trust, but shall not be obligated to
sell any specific number of Shares. The services of BISYS hereunder are not to
be deemed exclusive and nothing herein contained shall prevent BISYS from
entering into distribution arrangements with other investment companies so
long as the performance of its obligations hereunder is not impaired thereby.
(b) In selling the Shares of the Trust, BISYS shall conform
with the requirements of all federal and state laws and regulations and the
regulations of the National Association of Securities Dealers, Inc. (the
"NASD") relating to the sale of such securities. Neither BISYS nor any other
person is authorized by the Trust to give any information or to make any
representations, other than those contained in the Prospectus for each Series
or any sales literature specifically approved by the Trust for use with
respect to a particular Series.
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(c) BISYS shall adopt and follow procedures for the
confirmation of sales to investors and selected dealers, the collection of
amounts payable by investors on such sales and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD
and applicable law, as such requirements may from time to time exist.
Section 7. Selected Dealer Agreements.
(a) BISYS shall have the right, acting only on its own behalf
as principal, to enter into selected dealer agreements with securities dealers
and other persons of its choice ("Selected Dealers") for the sale of Shares;
provided, however, that the form of Selected Dealers agreement shall be
approved by the Trust and that no Selected Dealer entering into a Selected
Dealer agreement with BISYS shall be authorized to act as agent for the Trust
in connection with the offer or sale of its Shares to the public or otherwise.
Shares sold to Selected Dealers shall be for resale by such dealers only in
accordance with the provisions of the Prospectus relating to such Shares.
(b) Within the United States, BISYS shall offer and sell Shares
only to such Selected Dealers as are members in good standing of the NASD.
Section 8. Acceptance of Appointment.
BISYS accepts its appointment as Distributor and agrees during
such period to render such services and to assume the obligations herein set
forth for the compensation herein provided. Unless otherwise expressly
provided or authorized herein, BISYS shall not have any authority to act for
or represent the Trust in any way or otherwise be deemed an agent of the
Trust.
Section 9. Payment of Expenses.
(a) Except as provided in Section 9(d) hereof, BISYS shall pay
without reimbursement by the Trust the costs of its personnel used in
connection with the performance of its obligations hereunder, of providing
necessary office space for the performance of its obligations hereunder and of
all related overhead expenses, of maintaining its own qualification as a
broker under State or Federal laws, and of performing its duties hereunder;
and any fees or commissions pursuant to Selected Dealer agreements described
in Section 7 hereof.
(b) The Trust agrees to pay all costs and expenses in
connection with the registration of Shares under the Securities
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Act, as amended, and all expenses in connection with maintaining facilities
for the issue and transfer of Shares and for supplying information, prices and
other data to be furnished by the Trust hereunder, and all expenses in
connection with the preparation and printing of the Trust's Prospectuses and
statements of additional information for regulatory purposes and for
distribution to existing shareholders; provided, however, that except as
provided in Section 9(d) hereof, nothing contained herein shall be deemed to
require the Trust to pay any of the costs in connection with the sale of
Shares.
(c) Payments by the Trust relating to any distribution plan
within the meaning of Rule 12b-1 under the Investment Company Act (a "Plan")
adopted by the Trust's Board of Trustees (the "Board of Trustees") shall be
payable to the Distributor or its assignees, all in accordance with the terms
and conditions of such Plan. With respect to payments by the Trust relating to
the Distribution Plan relating to Class B shares: (i) payments to be made by
the Trust to the Distributor pursuant to such Plan as reimbursement of
expenses shall be for direct expenses of the Distributor authorized to be
incurred by the Trust pursuant to paragraph 1 of such Plan, (ii) upon
termination of such Plan, the benefits inuring to the Distributor shall
immediately cease, and (iii) expenses of the Distributor under such Plan in
any fiscal year of the Trust which cannot be paid by the Trust because payment
of such expenses would cause the Trust to exceed the limitation set forth in
paragraph 1 of such Plan during such fiscal year, shall not be payable to the
Distributor in any succeeding fiscal year of the Trust.
(d) Any contingent deferred sales charges and any charges
pursuant to a Plan which are payable in connection with purchases of Class B
Shares shall be payable to BISYS or its assignees, all in accordance with the
Trust's Registration Statement.
Section 10. Indemnification.
(a) The Trust shall indemnify and hold harmless BISYS, its
respective officers, directors, partners and employees and each person, if
any, who controls BISYS within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934 against
any loss, liability, claim, damage or expense (including the reasonable cost
of investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith), arising
by reason of any person acquiring any Shares, which may be based upon the
Securities Act, or on any other statute or at common law, on the ground that
the
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Registration Statement or related Prospectus of any Series, as from time to
time amended and supplemented, or the annual or interim reports to
shareholders of any Series, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, unless such statement or
omission was made in reliance upon, and in conformity with, written
information furnished to the Trust in connection therewith by or on behalf of
BISYS, as the case may be; provided, however, that in no case (i) is the
indemnity by the Trust in favor of BISYS, its respective officers, directors,
partners and employees and any such controlling person to be deemed to protect
BISYS, its respective officers, directors, partners and employees or any such
controlling persons thereof against any liability to the Trust or its security
holders to which BISYS, its respective officers, directors, partners and
employees or any such controlling persons would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Trust to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against
BISYS, its respective directors, or any such controlling persons, unless
BISYS, its respective officers, directors, partners and employees or such
controlling persons, as the case may be, shall have notified the Trust in
writing within ten (10) days after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
BISYS, its respective officers, directors, partners or employees or such
controlling persons (or after BISYS, its respective officers, directors,
partners and employees or such controlling persons shall have received notice
of such service on any designated agent), but failure to notify the Trust of
any such claim shall not relieve the Trust 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 Trust 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 Trust elects to assume the defense, such defense shall
be conducted by counsel chosen by the Trust and satisfactory to BISYS, its
respective officers, directors, partners and employees or such controlling
person or persons, defendant or defendants in the suit. In the event the Trust
elects to assume the defense of any such suit and retain such counsel, BISYS,
its respective officers, directors, partners and employees or such controlling
person or persons, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them. In the event the
Trust does not elect to assume the
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defense of any such suit, it will reimburse BISYS, its respective officers,
directors, partners and employees or such controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and expenses of
any counsel retained by them. The Trust shall promptly notify BISYS of the
commencement of any litigation or proceedings against it or any of its
respective officers or trustees in connection with the issuance or sale of any
of the Shares. The Trust's indemnification agreement contained in this Section
10(a) 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 BISYS, its respective officers, directors, partners
and employees or any controlling person, and shall survive the delivery of any
Shares. The indemnity provided for herein will be in addition to any liability
which the Trust may otherwise have.
(b) BISYS shall indemnify and hold harmless the Trust and each
of its trustees, officers, and employees and each person, if any, who controls
the Trust against any loss, liability, claim, damage, or expense described in
the foregoing indemnity contained in subsection (a) of this Section, but only
with respect to statements or omissions to state a material fact necessary to
make such statements not misleading, made in reliance upon, and in conformity
with, information furnished to the Trust in writing by BISYS or on BISYS's
behalf for use in connection with the Registration Statement or related
Prospectus of any Series, as from time to time amended, or the annual or
interim reports to shareholders of any Series. Additionally, BISYS shall
indemnify and hold harmless the Trust and each of its trustees, officers, and
employees and each person, if any, who controls the Trust against any loss,
liability, claim, damage, or expense resulting from willful misfeasance, bad
faith or gross negligence on the part of BISYS or reckless disregard by BISYS
of its duties under this Agreement. In the event any action shall be brought
against the Trust or any persons so indemnified, in respect of which indemnity
may be sought against BISYS, BISYS shall have the rights and duties given to
the Trust, and the Trust and each person so indemnified shall have the rights
and duties given to BISYS by the provisions of subsection (a) of this Section
10.
Section 11. Certain Administrative Duties of BISYS.
During normal business hours, BISYS shall provide personnel to
respond to questions with respect to the Trust or to refer such inquiries to
appropriate Trust officials.
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Section 12. Duration and Termination of this Agreement.
This Agreement shall become effective as to each Series upon
the date first above written. Unless sooner terminated as provided herein, it
shall continue with respect to each Series until June 30, 1998. Thereafter, if
not terminated, it shall remain in force with respect to any particular Series
from year to year, so long as such continuance is specifically approved at
least annually by (a) by the Board of Trustees of the Trust and (b) by a
majority of those trustees who are not "interested persons" of the Trust (as
defined in the Investment Company Act) and who have no direct or indirect
financial interest in the operation of this Agreement, or related Service and
Distribution Plan or "interested persons" of any person having such financial
interest, cast in person at a meeting called for the purpose of voting on such
approval.
This Agreement may be terminated with respect to any particular
Series at any time, without the payment of any penalty, by a majority of those
trustees of the Trust who are not "interested persons" of the Trust and have
no direct or indirect financial interest in the operation of any Plan adopted
by the Trust or any related agreement thereto, or by vote of a majority of the
outstanding voting securities of the Trust on 60 (sixty) days written notice,
or by BISYS on 90 (ninety) days' written notice to the Trust.
The provisions of Section 10 shall survive any termination of
this Agreement.
Section 13. Amendments.
This Agreement may be amended in writing by the parties hereto
only if such amendment is specifically approved (i) by the Board of Trustees
of the Trust, and (ii) by a majority of those trustees who are not parties to
this Agreement and have no direct or indirect financial interest in the
operation of this Agreement, or "interested persons" of any such party, which
vote must be cast in person at a meeting called for the purpose of voting on
such approval.
Section 14. Definitions of Certain Terms.
The terms "vote of a majority of the outstanding voting
securities", "assignment," and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
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Section 15. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of Michigan, without reference to principles of conflicts of law,
and with the applicable provisions of the Investment Company Act. To the
extent the applicable law of the State of Michigan or any of the provisions
herein conflict with the applicable provisions of the Investment Company Act,
the latter shall control.
Section 16. Personal Liability.
The obligations of the Trust entered into in the name or on
behalf thereof by any of the trustees of the Trust, representatives or agents
are made not individually, but in such capacities, and are not binding upon
any of the trustees, shareholders or representatives of the Trust personally,
but bind only the Trust property, and all persons dealing with any series of
shares in the Trust must look solely to the Trust property belonging to such
series for the enforcement of any claims against the Trust.
THE XXXXXXXX VARIABLE ANNUITY FUND
By
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Its
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BISYS Fund Services Limited Partnership
By: BISYS Fund Services, Inc.,
its general partner
By:
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SCHEDULE 1
LIST OF PORTFOLIOS
MANAGED ASSETS BALANCED FUND
GROWTH AND VALUE FUND
MID CAP OPPORTUNITY FUND
GROWTH FUND
MONEY MARKET FUND
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