Exhibit (e)(2)
DISTRIBUTION AND SERVICES
AGREEMENT FOR CLASS S SHARES
This Agreement is made as of November 3, 2003, between Xxxxxxxxx Xxxxxx
Advisers Management Trust, a Delaware business trust ("Trust"), and Xxxxxxxxx
Xxxxxx Management Inc., a New York corporation (the "Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end, management investment company and
has established several separate series of shares of beneficial interest
("Shares"), with each series having its own assets, liabilities, and investment
policies;
WHEREAS, the series issue and sell or propose to issue and sell their
Shares to separate accounts of life insurance companies ("Life Companies") to
serve as investment vehicles for variable annuities and/or variable life
contracts issued by such Life Companies ("Variable Contracts") and may issue and
sell their Shares to such other persons who may purchase under Treasury
Regulation Section 1.817-5, which may include, among others, qualified pension
and retirement plans ("Qualified Plans");
WHEREAS, certain of the series intend to issue Shares of a class
designated as Class S.
WHEREAS, the Trust desires to retain the Distributor to furnish certain
distribution, shareholder and administrative services with respect to Class S of
each series listed in Schedule A attached hereto (each such series a
"Portfolio"); and with respect to Class S of such other series of the Trust
hereinafter established as agreed to from time to time by the parties, evidenced
by an addendum to Schedule A (hereinafter "Portfolio" shall refer to each
Portfolio which is subject to this Agreement and all agreements and actions
described herein to be made or taken by a Portfolio shall be made or taken by
the Trust on behalf of the Portfolio), and the Distributor is willing to furnish
such services,
WHEREAS, the Trust has approved a Distribution and Shareholder Services
Plan for Class S Shares pursuant to Rule 12b-l under the 1940 Act ("Plan") with
respect to Class S Shares of each Portfolio (hereinafter "Shares" shall refer to
Class S Shares of a Portfolio).
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. The Trust hereby appoints the Distributor as agent to
sell Shares to separate accounts of Life Companies, to Qualified Plans, and to
such other persons as may be permitted by law, and the Distributor hereby
accepts such appointment. All sales by the Distributor shall be expressly
subject to acceptance by the Trust, acting on behalf of the Portfolio.
2. (a) The Distributor agrees that (i) all Shares sold
by the Distributor shall be sold at the net asset value ("NAV") thereof as
described in Section 3 hereof, and (ii) the Portfolio shall receive 100% of such
NAV.
(b) The Shares may be sold in accordance with the
following: fund participation or other agreements between the Trust, the
Distributor, and the Life Companies; agreements between the Trust or the
Distributor and Qualified Plans or the trustees of such plans; agreements with
other financial intermediaries. The Shares may also be offered directly to
persons eligible to purchase the Shares.
(c) The Distributor may enter into agreements, in
form and substance satisfactory to the Trust, with dealers selected by the
Distributor, providing for the sale to such dealers and resale by such dealers
of Shares at their NAV. The Distributor may compensate dealers for services they
provide under such agreements.
(d) The Distributor can use any of the officers and
employees of Xxxxxxxxx Xxxxxx, LLC to provide any of the services or reports
required under this agreement.
3. The Trust agrees to supply to the Distributor, promptly
after the time or times at which NAV is determined, on each day on which NAV is
determined as provided in the then-current Prospectus and/or Statement of
Additional Information ("SAI") of the pertinent Portfolio (each such day a
"business day"), a statement of the NAV of each Portfolio, having been
determined in the manner set forth in the then-current Prospectus and/or SAI of
the pertinent Portfolio. Each determination of NAV shall take effect as of such
time or times on each business day as set forth in the then-current Prospectus
and/or SAI of the pertinent Portfolio, and shall prevail until the time as of
which the next determination is made.
4. Upon receipt by the Trust at its principal place of
business of an order from the Distributor, the Trust shall, if it elects to
accept such order, as promptly as practicable, cause the Shares purchased by
such order to be delivered in such amounts and in such names as the Distributor
shall specify or as agreed upon in a fund participation agreement or other
agreement with a Life Company or other offeree, against payment therefor in such
manner as may be acceptable to the Trust or as agreed upon in a fund
participation agreement or other agreement with a Life Company or other offeree.
The Trust may, in its discretion, refuse to accept any order for the purchase of
Shares that the Distributor may tender to it.
5. (a) All sales literature and advertisements used by
the Distributor in connection with sales of Shares shall be subject to approval
by the Trust. The Trust authorizes the Distributor, in connection with the sale
or arranging for the sale of Shares of any Portfolio, to provide only such
information and to make only such statements or representations as are contained
in the Portfolio's then-current Prospectus and/or SAI or in such financial and
other statements furnished to the Distributor pursuant to the next paragraph or
as may properly be included in sales literature or advertisements in accordance
with the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
the 1940 Act and applicable rules of self-regulatory organizations. Neither the
Trust nor any Portfolio shall be responsible in any way for any information
provided or statements or representations made by the Distributor or its
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representatives or agents other than the information, statements and
representations described in the preceding sentence.
(b) Each Portfolio shall keep the Distributor fully
informed with regard to its affairs, shall furnish the Distributor with a copy
of all of its financial statements and a signed copy of each report prepared for
it by its independent auditors, and shall cooperate fully in the efforts of the
Distributor to negotiate and sell Shares of such Portfolio and in the
Distributor's performance of all its duties under this Agreement.
6. The Distributor, as agent of each Portfolio and for the
account and risk of each Portfolio, is authorized, subject to the direction of
the Trust, to accept orders to redeem outstanding Shares of such Portfolio when
properly tendered by shareholders pursuant to the redemption right granted to
such Portfolio's shareholders by the Trust Instrument of the Trust, as from time
to tune in effect, at a redemption price equal to the NAV per Share of such
Portfolio next determined after proper tender and acceptance, subject to any
fees on redeemed Shares that are described in the then-current Prospectus and/or
SAI of the pertinent Portfolio, or as agreed upon in a fund participation
agreement or other agreement with a Life Company or other offeree. The Trust has
delivered to the Distributor a copy of the Trust's Trust Instrument as currently
in effect and agrees to deliver to the Distributor any amendments thereto
promptly upon filing thereof with the Office of the Secretary of State of the
State of Delaware.
7. The Distributor shall assume and pay or reimburse each
Portfolio for the following expenses of such Portfolio: (i) costs of printing
and distributing reports, prospectuses and SAIs for other than existing
shareholders used in connection with the sale or offering of the Portfolios'
Shares; and (ii) costs of preparing, printing and distributing all advertising
and sales literature relating to such Portfolio printed at the instruction of
the Distributor. The Distributor shall pay all its own costs and expenses
connected with the sale of Shares and may pay the compensation and expenses,
including overhead and telephone and other communication expenses, of
organizations and employees that engage in or support the distribution of Shares
and/or in support of rendering services to persons with interest in the Shares.
8. Each Portfolio shall maintain a currently effective
Registration Statement on Form N-1A with respect to such Portfolio and shall
file with the Securities and Exchange Commission (the "SEC") such reports and
other documents as may be required under the 1933 Act and the 1940 Act, or the
rules and regulations of the SEC thereunder.
Each Portfolio represents and warrants that the Registration
Statement, post-effective amendments, Prospectus and SAI (excluding statements
relating to the Distributor and the services it provides that are based upon
written information furnished by the Distributor expressly for inclusion
therein) of such Portfolio shall not contain any untrue statement of material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that all statements
or information furnished to the Distributor, pursuant to Section 5(b) hereof,
shall be true and correct in all material respects.
9. In addition to the foregoing, the Distributor agrees to
provide or obtain certain administrative and shareholder services with respect
to Class S of each Portfolio. Such
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services may include, but are not limited to, the following: administering
periodic investment and periodic withdrawal programs; researching and providing
historical account activity information for shareholders requesting it;
preparing and mailing account and confirmation statements to account holders;
preparing and mailing tax forms to account holders; serving as custodian to
retirement plans investing in Shares; dealing appropriately with abandoned
accounts; collating and reporting the number of Shares attributable to each
state for blue sky registration and reporting purposes; identifying and
reporting transactions exempt from blue sky registration requirements; and
providing and maintaining ongoing shareholder services for the duration of the
shareholders' investment in Shares of each Portfolio, which may include updates
on performance, total return, other related statistical information, and a
continual analysis of the suitability of the investment in Shares of each
Portfolio. Such services may also include services to Life Companies, their
affiliates, or current and prospective owners of Variable Contracts, including,
but not limited to, the following: teleservicing support in connection with the
Portfolios; delivery and responding to inquires respecting Portfolio
Prospectuses and/or SAIs, reports, notices, proxies and proxy statements and
other information respecting the Portfolios (but not including services paid for
by the Trust such as printing and mailing); facilitation of the tabulation of
Variable Contract owners' votes in the event of a meeting of Trust shareholders;
maintenance of Variable Contract records reflecting Shares purchased and
redeemed and Share balances, and the conveyance of that information to the
Trust, or its transfer agent as may be reasonably requested; provision of
support services including providing information about the Trust and its
Portfolios and answering questions concerning the Trust and its Portfolios,
including questions respecting Variable Contract owners' interests in one or
more Portfolios; provision and administration of Variable Contract features for
the benefit of Variable Contract owners participating in the Trust including
fund transfers, dollar cost averaging, asset allocation, portfolio rebalancing,
earnings sweep, and pre-authorized deposits and withdrawals; and provision of
other services as may be agreed upon from time to time.
The Distributor may subcontract to third parties some or all of
its responsibilities to the Portfolio under this paragraph. The Distributor may
pay compensation and expenses, including overhead and telephone and other
communication expenses, to organizations and employees who provide such
services, including Life Companies and their affiliates.
10. As compensation for the distribution, shareholder and
administrative services provided under this Agreement, the Distributor shall
receive from the Shares of each Portfolio a fee at the rate and under the terms
and conditions set forth in the Plan adopted by the Trust's Board of Trustees
for the Shares of the Portfolio, as such Plan may be amended from time to time.
Such amounts shall be compensation to the Distributor for such services without
regard to the Distributor's actual expenses for rendering such services, which
may be less than or greater than the amounts paid to the Distributor as
compensation hereunder. In addition to the expenditures specifically authorized
herein, the Distributor may spend with respect to the Shares such amounts as it
deems appropriate for any purpose consistent with the Plan, as amended from time
to time.
11. The Distributor shall prepare, at least quarterly,
reports for the Trustees showing expenditures under this Agreement and the
purposes for which such expenditures were
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made. Such reports shall be in a format suitable to ensure compliance with the
applicable requirements of the SEC and the National Association of Securities
Dealers.
12. (a) This Agreement shall become effective with
respect to a Portfolio on the date indicated in Schedule A and, unless sooner
terminated as herein provided, this Agreement shall remain in effect until
October 31, 2005, unless renewed as hereinafter provided prior to that date, and
may be continued from year to year thereafter; provided, that such continuance
shall be specifically approved each year by the Trustees or by a majority of the
outstanding voting securities of the Class S Shares of the Portfolio, and in
either case, also by a majority of the Trustees who are not interested persons
of the Trust or the Distributor ("Disinterested Trustees"). This Agreement may
be amended as to any Portfolio with the approval of the Trustees or of a
majority of the outstanding voting securities of the Class S Shares of such
Portfolio; provided, that in either case, such amendment also shall be approved
by a majority of the Disinterested Trustees.
(b) Either party may terminate this Agreement
without the payment of any penalty, upon not more than sixty days' nor less than
thirty days' written notice delivered personally or mailed by registered mail,
postage prepaid, to the other party; provided, that in the case of termination
by any Portfolio, such action shall have been authorized (i) by resolution of
the Trustees, or (ii) by vote of a majority of the outstanding voting securities
of the Class S Shares of such Portfolio, or (iii) by written consent of a
majority of the Disinterested Trustees.
(c) This Agreement shall automatically terminate
upon its "assignment" by the Distributor.
(d) Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretation thereof, if any, by the United
States courts or by rules, regulations, orders, or interpretations of the SEC.
Specifically, the terms "interested persons," "assignment" and "vote of a
majority of the outstanding voting securities", as used in this Agreement, shall
have the meanings assigned to them by Section 2(a) of the 1940 Act. In addition,
when the effect of a requirement of the 1940 Act reflected in any provision of
this Agreement is modified, interpreted or relaxed by a rule, regulation or
order of the SEC, whether of special or of general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or order. The
Trust and the Distributor may from time to time agree on such provisions
interpreting or clarifying the provisions of this Agreement as, in their joint
opinion, are consistent with the general tenor of this Agreement and with the
specific provisions of this Section 12(d). Any such interpretation or
clarification shall be in writing signed by the parties and annexed hereto, but
no such interpretation or clarification shall be effective if in contravention
of any applicable federal or state law or regulation, and no such interpretation
or clarification shall be deemed to be an amendment of this Agreement.
No term or provision of this Agreement shall be
construed to require the Distributor to provide distribution services to any
series of the Trust other than the Portfolios listed in Schedule A, or to
require Class S or any Portfolio to pay any compensation or expenses
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that are properly allocable, in a manner approved by the Trustees, to a class or
series of the Trust other than Class S or such Portfolio.
(e) This Agreement is made and to be principally
performed in the State of New York, and except insofar as the 1940 Act or other
federal laws and regulations may be controlling, this Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York.
(f) This Agreement is made by the Trust solely with
respect to Class S of the Portfolio, and the obligations created hereby bind
only assets belonging to Class S of that Portfolio.
13. The Distributor or one of its affiliates may from time
to time deem it desirable to offer to the list of shareholders of Class S of
each Portfolio the shares of other mutual funds for which it acts as
Distributor, including other series of the Trust or other products or services;
however any such use of the list of shareholders of any Series shall conform to
applicable law and shall be made subject to such terms and conditions, if any,
as shall be approved by a majority of the Disinterested Trustees.
14. The Distributor shall look only to the assets of Class S
of a Portfolio for the performance of this Agreement by the Trust on behalf of
such Portfolio, and neither the Trustees nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed by their duly authorized officers and under their
respective seals.
XXXXXXXXX XXXXXX
ADVISERS MANAGEMENT TRUST
/s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx
Title: Chairman and CEO
XXXXXXXXX XXXXXX
MANAGEMENT INC.
/s/ Xxxxxx Xxxxx
---------------------
By: Xxxxxx Xxxxx
Title: Snr Vice President
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST
DISTRIBUTION AND SERVICES AGREEMENT
SCHEDULE A
PORTFOLIO DATE ADDED TO AGREEMENT
Xxxxxxxx Portfolio November 3, 2003
Guardian Portfolio November 3,2003
International Portfolio November 3, 2003
Mid-Cap Growth Portfolio November 3, 2003
Real Estate Portfolio November 3, 2003
Xxxxxx Brothers High Income Bond Portfolio June 10, 2004
Regency Portfolio December 15, 2004
Socially Responsive Portfolio April 28, 2006
International Large Cap Portfolio August 15, 2006
DATED: May 1, 2007
