Exhibit 99(e)(1)
DISTRIBUTION AGREEMENT
This Agreement entered into as of this 15th day of August, 2001, by and
between Financial Investors Variable Insurance Trust, a Delaware business trust
having its principal place of business at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 (the "Trust") and ALPS Mutual Funds Services, Inc., a Colorado
corporation having its principal place of business at 000 00xx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000 (the "Distributor").
WHEREAS, the Trust wishes to employ the services of the Distributor in
connection with the promotion and distribution of the Trust's shares of
beneficial interest of the First Horizon Capital Appreciation Portfolio, the
First Horizon Growth & Income Portfolio, and any other Portfolios offered by the
Trust as listed on Schedule A, attached hereto (the "Portfolios");
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
1. Services as Distributor
1.1 The Distributor will act as agent for the distribution of shares in
accordance with the instructions of the Trust's Board of Trustees and
registration statement and prospectuses then in effect with respect to the
Portfolios under the Securities Act of 1933, as amended, and will transmit
promptly any orders received by the Distributor for the purchase or redemption
of Shares either directly to the Trust's transfer agent for the Portfolio
involved or to any qualified broker/dealer for transmittal to said agent.
1.2(a) In consideration of these rights granted to the Distributor, the
Distributor agrees to use its best efforts, consistent with its other business,
to solicit orders for the sale of Shares. This shall not prevent the Distributor
from entering into like arrangements (including arrangements involving the
payment of underwriting commissions) with other issuers. The Distributor, at its
expense, shall finance appropriate activities which it deems reasonable 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. In addition, the
Distributor will provide one or more persons, during normal business hours, to
respond to telephone questions with respect to the Portfolios.
1.2(b) All shares of the Portfolios offered for sale by the Distributor
shall be offered for sale to the public at a price per share (the "offering
price") equal to their net asset value (determined in the manner set forth in
the Trust's Declaration of Trust and then current Prospectuses and/or Statements
of Additional Information), plus a sales charge (if any) described in the
Trust's current Prospectuses and/or Statements of Additional Information. The
Trust shall in all cases receive the net asset value per share on all shares. If
a sales charge is in effect, the Distributor shall have the right, subject to
such rules or regulations of the Securities and Exchange Commission as may then
be in effect pursuant to Section 22 of the Investment Company Act of 1940, as
amended, (the "1940 Act") to pay a portion of the sales charge to dealers who
have sold shares of the Trust. If a fee in connection with shareholder
redemptions is in effect, the Trust shall collect the fee on behalf of the
Distributor and, unless otherwise agreed upon by the Trust and the Distributor,
the Distributor shall be entitled to receive all of such fees. The offering
price, if not an exact multiple of one cent, shall be adjusted to the nearest
cent.
1.2(c) This Agreement shall apply to unissued shares of the Trust,
shares of the Trust held in its treasury in the event that in the discretion of
the Trust, treasury shares shall be sold, and shares of the Trust repurchased
for resale.
1.3 The Distributor shall act as distributor of the shares in
compliance with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted pursuant to the Investment
Company Act of 1940, as amended, by the Securities and Exchange Commission or
any securities association registered under the Securities and Exchange Act of
1934, as amended. THE DISTRIBUTOR SHALL NOT MAKE OFFERS OF SALE OF SHARES IN ANY
STATE UNLESS THE DISTRIBUTOR HAS BEEN NOTIFIED BY THE TRUST THAT SUCH SHARES
HAVE BEEN REGISTERED UNDER THE SECURITIES LAWS OF SUCH STATE, OR THAT THERE IS
AN AVAILABLE EXEMPTION FROM REGISTRATION.
1.4 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by circumstances of any kind, the Trust's
officers may decline to accept any orders for, or make any sales of, any shares
until such time as they deem it advisable to accept such orders and to make such
sales and the Trust shall advise you promptly of such determination.
1.5 Except as otherwise provided for in the Administrative Agreement
dated as of ______________, 2000, by and between the Trust and the Distributor
(the "Administration Agreement"), the Trust agrees to pay all costs and expenses
in connection with the registration of shares under the Securities Act of 1933,
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.
1.6 The Trust agrees to execute any and all documents and to furnish
any and all information and otherwise to take all actions which may be
reasonably necessary in the discretion of the Trust's officers in connection
with the qualification of shares for sale in such states as the Distributor may
designate to the Trust and the Trust may approve, and the Trust agrees to pay
all expenses which may be incurred in connection with such qualification. The
Distributor shall pay all expenses connected with its own qualification as a
broker under State or Federal laws and, except as otherwise specifically
provided in this agreement, all other expenses incurred by the Distributor in
connection with the sale of shares as contemplated in this agreement.
1.7 The Trust shall furnish the Distributor from time to time, for use
in connection with the sale of shares, such information with respect to the
Trust and the shares as the Distributor may reasonably request, and the Trust
warrants that the statements contained in any such information, when so signed
by the Trust's officers, shall be true and correct. Subject to the provisions of
the Administration Agreement the Trust also shall furnish the Distributor upon
request with: (a) annual audited reports of the Trust's books and accounts with
respect to each of the Portfolios, made by independent public accountants
regularly retained by the Trust, (b) semi -annual reports with respect to each
of the Portfolios prepared by the Trust, and (c) from time to time such
additional information regarding the Trust's financial condition as the
Distributor may reasonably request.
1.8 The Trust represents to the Distributor that all registration
statements and prospectuses filed by the Trust with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
shares have been prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder. As
used in this agreement the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus (together with the related
statement of additional information) filed with the Securities and Exchange
Commission with respect to any of the shares and any amendments and supplements
thereto which at any time shall have been filed with said Commission. The Trust
represents and warrants to the Distributor 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 materially 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. The Trust may but shall not be obligated to
propose from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus as, in the light
of future developments, may, in the opinion of the Trust's counsel, be necessary
or advisable. If the Trust shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Trust of a
written request from the Distributor to do so, the Distributor may, at its
option, terminate this agreement. The Trust shall not file any amendment to any
registration statement or supplement to any prospectus without giving the
Distributor reasonable notice thereof in advance; provided, however, that
nothing contained into this agreement shall in any way limit the Trust's right
to file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.9 The Trust authorizes the Distributor to use any prospectus in the
form furnished to the Distributor from time to time, in connection with the sale
of shares. 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 Section 15 of
the Securities Act of 1933, as amended, (hereinafter referred to collectively as
"indemnified party") 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 in
connection therewith) which the Distributor, its officers and directors, or any
such controlling person, may incur under the Securities Act of 1933, as amended,
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 any prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
either any registration statement or any prospectus or necessary to make the
statements in either thereof not misleading; provided, however, that the Trust's
agreement to indemnify the Distributor, its officers or directors, and any such
controlling person shall not be deemed to cover any claims, demands, liabilities
or expenses arising out of or based on any omission, or alleged omission, made
in any registration statement or prospectus in reliance upon and in conformity
with information furnished to the Trust or its counsel by the Distributor and
used in the preparation thereof; and provided further that the Trust's agreement
to indemnify the Distributor and the Trust's representations and warranties
herein set forth shall not be deemed to cover any liability to the Trust or its
shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in performance of its duties,
or by reason of its reckless disregard of its obligations and duties under this
agreement. 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 and directors, or any such controlling person, such
notification to be given by letter or by telegram addressed to the Trust at its
principal office within ten days 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
alleged untrue, statement or omission, or alleged omission, otherwise than on
account of the Trust's indemnity agreement contained in this paragraph 1.9. 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. In the event the Trust elects to assume the defense of any such
suit and retain counsel of good standing chosen by the Trust and approved by the
Distributor, which approval shall not be unreasonably withheld, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by the defense of any such suit, or in case the Distributor
does not reasonably 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 1.9 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 and directors, and their respective estates, and
to the benefit of any 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 of the shares.
1.10 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 Securities Act of 1933, as amended, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands,
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 Securities Act of 1933, as amended, or under common law or otherwise, but
only to the extent that such a 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 any omission, or alleged omission,
to state a material fact in connection with such information furnished by the
Distributor to the Trust, or necessary to make such information not misleading.
The Distributor's agreement to indemnify the Trust, its officers and trustees,
or any such controlling person, such notification to be given by letter or
telegram addressed to the Distributor at its principal office within ten days
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 its own choosing, satisfactory to the Trust, if such action is based
solely upon such alleged misstatement or omission on the Distributor's part, and
in any other event the Trust, its officers or trustees or such controlling
person shall each have the right to participate in the defense or preparation of
the defense of such action. The failure so to notify the Distributor of any such
action shall not relieve the Distributor from any liability which the
Distributor 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
your omission, or alleged omission, otherwise than on account of your indemnity
agreement contained in this paragraph 1.10.
1.11 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 such 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
Securities and Exchange Commission; provided, however, that nothing contained in
this paragraph 1.11 shall in any way restrict or have an application to or
bearing upon the Trust's obligation to repurchase shares from any shareholder in
accordance with the provisions of the prospectuses or Declaration of Trust.
1.12 The Distributor and the Trust each agree to advise the other
promptly in writing:
(a) of any request by the Securities and Exchange Commission for
amendments to the registration statement or prospectuses then in
effect;
(b) 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;
(c) of the happening of any event which makes untrue any statement
of a material fact made in the registration statement or
prospectuses in order to make the statements therein not
misleading; and
(d) of all the actions of the Securities and Exchange Commission
with respect to any registration statement or prospectus which may
from time to time be filed with the Securities and Exchange
Commission.
2. Term
2.1 This agreement shall become effective as of the date hereof and,
unless sooner terminated, shall continue until August 14, 2003, and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Trust's Board
of Trustees or (ii) the vote of a majority (as defined in the Investment Company
Act of 1940) of the Portfolios' outstanding shares, provided that in either
event its continuance also is approved by a majority of the Trust's trustees who
are not "interested persons" (as defined in said Act) of any party to this
agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. Notwithstanding anything to the contrary in this Agreement,
you may not terminate this Agreement prior to the later of: (i) the expiration
of the initial or any renewal term of the Administration Agreement; or (ii) the
effectiveness of any termination notice pursuant to the Administration
Agreement.
3. Miscellaneous
3.1 Other Work. The Trust recognizes that from time to time the
Distributor's directors, officers and employees may serve as directors, officers
and employees of other corporations or business trusts (including other
investment companies) and that such other corporations and trust may include the
name ALPS as part of their name, and that the Distributor or its affiliates may
enter into investment advisory or other agreements with such other corporations
and trusts.
3.2 Limitation of Liability of the Trustees and Shareholders. The names
"Financial Investors Variable Insurance Trust" and "Trustees of Financial
Investors Variable Insurance Trust" refer respectively to the Trust created and
the Trustees, as trustees but not individually or personally, acting from time
to time under a Declaration of Trust
dated July 26, 2000, which is hereby referred to and a copy of which is on file
at the office of the State Secretary of State of Delaware and the principal
office of the Trust. The obligations of "Financial Investors Variable Insurance
Trust" entered into in the name of or on behalf thereof by any of its trustees,
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 belonging to such class
for the enforcement of any claims against the Trust.
3.3 Amendments. No substantive amendment to this Agreement shall be
effective as to the Trust until approved by vote of a majority of the
outstanding voting securities of the Trust.
3.4 Modification. No provision of this agreement may be modified,
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 determination is sought.
3.5 Governing Law. This agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
3.6 Assignment. This agreement shall not be assigned by a party without
the prior written consent of the other party.
3.7 Headings. The titles and headings herein have been inserted for
convenience only and are not to be considered when interpreting the provisions
of this Agreement.
3.8 Waiver. The waiver by either party of a breach of any of the
covenants, provisions, or conditions herein contained shall not operate or be
construed as a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of the
date first above written.
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
By: /s/ Xxxxxxx Xxxx
---------------------------------
Secretary
ALPS Mutual Funds Services
By: /s/ Xxxxxx Xxx
---------------------------------
Senior Vice President
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
SCHEDULE A
First Horizon Capital Appreciation Portfolio
First Horizon Growth & Income Portfolio
