Exhibit (e)
Form of
DISTRIBUTION AGREEMENT
BB&T VARIABLE INSURANCE FUNDS
[ ]
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, BB&T Variable Insurance Funds (the "Trust"), a
Massachusetts business trust, has agreed that
_______________________________________________________ ___________ (the
"Distributor"), shall be, for the period of this Distribution Agreement (the
"Agreement"), the distributor of the units of beneficial interest of each of the
investment portfolios of the Trust identified on Schedule A hereto (the
"Funds"). Such units of beneficial interest are hereinafter called "Shares."
1. Services as Distributor
1.1 Distributor will act as agent for the distribution of the
Shares covered by the registration statement and prospectuses of the Trust then
in effect under the Securities Act of 1933, as amended (the "Securities Act").
As used in this Agreement, the term "registration statement" shall mean Parts A
(the prospectus), B (the Statement of Additional Information) and C of each
registration statement that is filed on Form N-1A, or any successor thereto,
with the Securities and Exchange Commission (the "Commission"), together with
any amendments thereto. The term "prospectus" shall mean each form of prospectus
and Statement of Additional Information used by the Funds for delivery to
shareholders and prospective shareholders after the effective dates of the
above-referenced registration statement, together with any amendments and
supplements thereto.
1.2 Distributor agrees to use appropriate efforts to solicit
orders for the sale for the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such solicitation. The
Trust understands that Distributor is now and may in the future be the
distributor of the shares of several investment companies or series (together,
"Companies") including Companies having investment objectives similar to those
of the Trust. The Trust further understands that investors and potential
investors in the Trust may invest in shares of such other Companies. The Trust
agrees that Distributor's duties to such Companies shall not be deemed in
conflict with its duties to the Trust under this paragraph 1.2.
Distributor shall, at its own expense, finance appropriate activities
which it deems reasonable which are primarily intended to result in the sale of
the Shares, including, but not limited to, advertising, compensation of
underwriter, dealers and sales personnel, the printing and mailing of
prospectuses to other than current Shareholders, and the printing and mailing of
sales literature.
1.3 In its capacity as distributor of the Shares, all activities
of Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the
Investment Company Act of 1940, as amended (the "1940 Act"), all rules and
regulations promulgated by the Commission thereunder and all rules and
regulations adopted by any securities association registered under the
Securities Exchange Act of 1934.
1.4. Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Trust.
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1.5. Distributor will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent and custodian for the
Funds.
1.6. Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the Trust's officers may decline to accept any orders for, or make any
sales of, the Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.7. Distributor will act only on its own behalf as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.8. The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as Distributor may designate.
1.9. The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Funds and the Shares as 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 Distributor upon request with: (a) unaudited semi-annual statements of
the Funds' books and accounts prepared by the Trust; (b) a monthly itemized list
of the securities in the Funds; (c) monthly balance sheets as soon as
practicable after the end of each month; and (d) from time to time such
additional information regarding the financial condition of the Funds as
Distributor may reasonably request.
1.10. The Trust represents to Distributor that, with respect to the
shares, all registration statements and prospectuses filed by the Trust with the
Securities and Exchange Commission under the Securities Act have been carefully
prepared in conformity with requirements of said Act and rules and regulations
of the Commission thereunder. The Trust represents and warrants to 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 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 to a
purchaser of the Shares. 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 Distributor to do so, 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
Distributor 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 and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.11. The Trust authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares. The Trust agrees to indemnify, defend and hold Distributor, its
several partners and employees, and any person who controls Distributor within
the meaning of Section 15 of the Securities 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 Distributor, its partners
and employees, or any such controlling person, may incur under the Securities
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 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
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prospectus or necessary to make the statements in either thereof not misleading;
provided, however, that the Trust's agreement to indemnify Distributor, its
partners or employees, and any such controlling person shall not be deemed to
cover any claims, demands, liabilities or expenses arising out of any statements
or representations, as are contained in any prospectus an in such financial and
other statements as are furnished in writing to the Trust by Distributor and
used in the answers to the registration statement or in the corresponding
statements made in the prospectus, or arising out of or based upon any omission
or alleged omission to state a material fact in connection with the giving of
such information required to be stated in such answers or necessary to make the
answers not misleading; and further provided that the Trust's agreement to
indemnify Distributor and the Trust's representations and warranties
hereinbefore set forth in paragraph 1.10 shall not be deemed to cover any
liability to the Trust or its Shareholders to which Distributor would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties, or by reason of Distributor's reckless disregard
of its obligations and duties under this Agreement. The Trust's agreement to
indemnify Distributor, its partners and employees and any such controlling
person, as aforesaid, is expressly conditioned upon the Trust being notified of
any action brought against Distributor, its partners or employees, or any such
controlling person, such notification to be given by letter or by telegram
addressed to the Trust at its principal office in Columbus, Ohio and sent to the
Trust by the person against whom such action is brought, within 10 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 allegedly untrue, statement or
omission, or alleged omission, otherwise than on account of the Trust's
indemnity agreement contained in this paragraph 1.11. 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 Distributor, which approval shall
not be unreasonably withheld. In the event the Trust elects to assume the
defense of any such suit and retain counsel of good standing approved by
Distributor, the defendant or defendants in such suit shall bear the fees and
expense 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 Distributor
reasonably does not approve of counsel chosen by the Trust, the Trust will
reimburse Distributor, its partners and employees, or the controlling person or
persons named as defendant or defendants in such suit, for the fees and expenses
of any counsel retained by Distributor or them. The Trust's indemnification
agreement contained in this paragraph 1.11 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 Distributor, its
partners and employees, or any controlling person, and shall survive the
delivery of any Shares.
This Agreement of indemnity will inure exclusively to Distributor's
benefit, to the benefit of its several partners and employees, and their
respective estates, and to the benefit of the controlling persons and their
successors. The Trust agrees promptly to notify 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.
1.12. 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 free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
costs of investigating 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 Securities 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 any untrue, or alleged untrue, statement of a material fact contained in
the information furnished in writing by Distributor to the Trust and used in the
answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus, 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 in writing by Distributor to the
Trust required to be stated in such answers or necessary to make such
information not misleading. Distributor's agreement to indemnify the Trust, its
officers and Trustees, and any such controlling person, as aforesaid, is
expressly conditioned upon Distributor being notified of any action brought
against the Trust, its officers or Trustees, or any such
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controlling person, such notification to be given by letter or telegram
addressed to Distributor at its principal office in Columbus, Ohio, and sent to
Distributor by the person against whom such action is brought, within 10 days
after the summons or other first legal process shall have been served.
Distributor shall have the right of first control of 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 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 any such action. The failure to so notify Distributor of any such
action shall not relieve Distributor from any liability which 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 omission or alleged
omission, otherwise than on account of Distributor's indemnity agreement
contained in this paragraph 1.12.
1.13. No Shares shall be offered by either 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
Securities Act or if and so long as a current prospectus as required by Section
10(b)(2) of said Act is not on file with the Commission; provided, however, that
nothing contained in this paragraph 1.13 shall in any way restrict or have an
application to or bearing upon the Group's obligation to repurchase Shares from
any Shareholder in accordance with the provisions of the Group's prospectus,
Agreement and Declaration of Trust, or Bylaws.
1.14. The Group agrees to advise Distributor as soon as reasonably
practical by a notice in writing delivered to Distributor or its counsel:
(a) of any request by the Commission for amendments to the
registration statement or prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the registration
statement or prospectus then in effect or the initiation by
service of process on the Group of any proceeding for that
purpose;
(c) of the happening of any event that makes untrue any statement
of a material fact made in the registration statement or
prospectus 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; and,
(d) of all action of the Commission with respect to any amendment
to any registration statement or prospectus which may from
time to time be filed with the Commission.
For purposes of this section, informal requests by or acts of the Staff
of the Commission shall not be deemed actions of or requests by the Commission.
1.15 Distributor agrees on behalf of itself and its partners and
employees to treat confidentially and as proprietary information of the Group
all records and other information relative to the Group 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, after prior notification to and approval in writing by the Group, 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, or when so requested by the Group.
1.16 This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
2. Fees
2.1 The Distributor shall receive from certain classes of the
Funds identified on Schedule B hereto a distribution fee at the rate and upon
the terms and conditions set forth in the Distribution and Shareholder Services
Plan dated October 1, 1992, as amended (the "Distribution Plan") entered into
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between the Group and the Distributor on behalf of such classes. The
distribution fee shall be accrued daily and shall be paid on the first business
day of each month, or at such time(s) as the Distributor shall reasonably
request. The services rendered by the Distributor for which the Distributor is
entitled to receive a Distribution Fee shall be deemed to have been completed at
the time of the initial sale of the Shares taken into account in computing the
Distribution Fee, and with respect to such Shares (regardless whether such
Shares were issued before or after the date hereof), the Distributor shall be
paid the Distribution Fee regardless of a termination of the Distributor as
principal underwriter of the Shares of the relevant Distribution Plan Funds, or
any termination of this Agreement other than a complete termination of the
Distribution Plan. Except as provided by Rule 12b-1 under the 1940 Act and the
terms of the Distribution Plan, as concerns continuation of the Plan and
termination of the Plan under certain circumstances, the relevant Fund's
obligation to pay the Distribution Fees to the Distributor, when applicable as
provided in the foregoing provisions of this Section 2, shall be absolute and
unconditional and shall not be subject to any dispute, offset, counterclaim or
defense whatsoever.
3. Front-End Load Shares -- Sale and Payment
Pursuant to the Declaration of Trust dated October 1, 1987, each Fund
may be divided into separate classes of Shares in which case the Shares of one
or more classes may be subject to a front-end sales load and may be subject to
the imposition of a distribution fee pursuant to the Distribution Plan referred
to above. To the extent that all Shares of a Fund are sold at an offering price
which includes a sales load or that Shares of one or more classes of a Fund are
sold at such an offering price, such Shares shall hereinafter be referred to
collectively as "Front-End Load Shares" and individually as a "Front-End Load
Share." Funds that contain Front-End Load Shares shall hereinafter be referred
to collectively as "Front-End Load Funds" and individually as a "Front-End Load
Fund." Under this Agreement, the following provisions shall apply with respect
to the sale of, and payment for, Front-End Load Shares of the Front-End Load
Funds identified on Schedule C hereto.
(a) The Distributor shall have the right, as principal, to
purchase Front-End Load Shares at their net asset value and to sell such
Front-End Load Shares to the public against orders therefor at the applicable
public offering price, as defined in Section 4 hereof. The Distributor shall
also have the right, as principal, to sell Front-End Load Shares to dealers
against orders therefor at the public offering price less a concession
determined by the Distributor, which concession shall not exceed the amount of
the sales charge or underwriting discount, if any, referred to in Section 4
below.
(b) Prior to the time of delivery of any Front-End Load Shares by
a Front-End Load Fund to, or on the order of, the Distributor, the Distributor
shall pay or cause to be paid to the Front-End Load Fund or to its order an
amount in Boston or New York clearing house funds equal to the applicable net
asset value of such Shares. The Distributor may retain so much of any sales
charge or underwriting discount as is not allowed by the Distributor as a
concession to dealers.
4. Front-End Load Shares -- Public Offering Price
The public offering price of a Front-End Load Share shall be the asset
value of such Front-End Load Share, plus any applicable sales charge, all as set
forth in the current prospectus of the Front-End Load Fund. The net asset value
of Shares shall be determined in accordance with the provisions of the Agreement
and Declaration of Trust and By-Laws of the Group and the then current
prospectus of the Front-End Load Fund.
5. Front-End Load Shares -- Issuance of Shares
The Group reserves the right to issue, transfer or sell Front-End Load
Shares at net asset value (a) in connection with the merger or consolidation of
the Group or the Front-End Load Fund(s) with any other investment company or the
acquisition by the Group or the Front-End Load Fund(s) of all or substantially
all of the assets or of the outstanding Shares of any other investment company;
(b) in connection with a pro rata distribution directly to the holders of Shares
in the nature of a stock dividend or split; (c) upon the exercise of
subscription rights granted to the holders of Shares on a pro rata basis; (d) in
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connection with the issuance of Front-End Load Shares pursuant to any exchange
and reinvestment privileges described in any then current prospectus of the
Front-End Load Fund; and (e) otherwise in accordance with any then current
prospectus of the Front-End Load Fund.
6. Sale of Shares Subject to a Contingent Deferred Sales Charge
6.1. The Group may offer Shares subject to a contingent deferred
sales charge (a "CDSC"). The Distributor may pay brokers, dealers and other
financial institutions and intermediaries commissions with regard to the sale of
CDSC Shares. Under this Agreement, the following provisions shall apply with
respect to Shares of a Class featuring a CDSC (a "CDSC Class") as described in
the prospectus(es) of the Funds and identified on Schedule D hereto.
(a) The Distributor shall be entitled to receive all CDSC payments
on Shares of a CDSC Class. The Distributor may assign or sell to a third party
(a "CDSC Financing Entity") all or a part of the CDSC payments on Shares of a
CDSC Class that the Distributor is entitled to receive under this Agreement. The
Distributor's right to payment on such Shares, if assigned or sold to a CDSC
Financing Entity, shall continue after termination of this Agreement.
(b) (i) The Distributor shall be entitled to receive all
distribution and service fees at the rate and under the terms and conditions set
forth in the Distribution Plan adopted by a CDSC Class on all Shares of such
CDSC Class so long as the Plan is in effect. The Distributor may assign or sell
to a CDSC Financing Entity all or a part of the distribution fees the
Distributor is entitled to receive from the Group under the Distribution Plan.
The Distributor's right to payment of distribution fees on such Shares, if
assigned or sold to a CDSC Financing Entity, shall continue after termination of
this Agreement. Otherwise, the right to receive all distribution and service fee
payments in respect of periods subsequent to the termination of this Agreement
shall terminate upon termination of this Agreement. In the event Distributor
assigns or sells all or a part of the CDSC payments or the distribution and
service fees referenced above to a CDSC Financing Entity and this Agreement is
subsequently terminated, Distributor shall have no obligation to assist the CDSC
Financing Entity in connection with such Entity's right to receive such payments
or fees subsequent to such termination.
(ii) The Distributor shall not be required to offer or sell
Shares of a CDSC Class unless and until it has received a binding commitment
from a CDSC Financing Entity (a "Commitment") satisfactory to the Distributor
which Commitment shall cover all expenses and fees related to the offer and sale
of such Shares of the CDSC Class including but not limited to dealer
reallowances, financing commitment fees, and legal fees. If at any time during
the term of this Agreement the then-current CDSC financing is terminated through
no fault of the Distributor, the Distributor shall have the right to immediately
cease offering or selling CDSC Shares until substitute financing becomes
effective.
(c) The Distributor and the Group hereby agree that the terms and
conditions set forth herein regarding the offer and sale of Shares of a CDSC
Class may be amended upon approval of both parties in order to comply with the
terms and conditions of any agreement with a CDSC Financing Entity to finance
the costs for the offer and sale of Shares of a CDSC Class so long as such terms
and conditions are in compliance with the Plan.
7. Term and Matter Relating to the Group as a Massachusetts
Business Trust
This Agreement shall become effective on _______________ and, unless
sooner terminated as provided herein, shall continue until _________________,
and thereafter shall continue automatically for successive annual periods ending
on the last day of _________ each year, provided such continuance is
specifically approved at least annually by (i) the Group's Board of Trustees or
(ii) by vote of a majority of the outstanding voting securities (as defined in
the 1940 Act) of the Group provided, however, that in either event the
continuance is also approved by the majority of the Group's Trustees who are not
parties to the Agreement or interested persons (as defined in the 1940 Act) of
any party to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable without
penalty, on not less than sixty days notice, by the Group's Board of Trustees,
by vote of a majority
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of the outstanding voting securities (as defined in the 1940 Act) of the Group
or the Distributor. This Agreement will also terminate automatically in the
event of its assignment (as defined in the 1940 Act).
The names "BB&T Funds" and "Trustees of BB&T Funds" refer respectively
to the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under the Agreement and Declaration of
Trust dated as of _______________ to which reference is hereby made and a copy
of which is on file at the office of the Secretary of State of the Commonwealth
of Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of BB&T Funds entered into
in the name or on behalf thereof by any of the 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 assets of the Trust, and all persons dealing with
any series of Shares of the Trust must look solely to the assets of the Trust
belonging to such series for the enforcement of any claims against the Trust.
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Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place designated
below, whereupon it shall become a binding agreement between us.
Yours very truly,
BB&T VARIABLE INSURANCE FUNDS
By: _______________________
Accepted:
_______________________________________
By: __________________
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Dated: ____________
Schedule A
to the
Distribution Agreement
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BB&T VARIABLE INSURANCE FUNDS
By:_____________________________
Title:__________________________
________________________________
By:_____________________________
Title:_________________________
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Dated: _________________
Schedule B
to the
Distribution Agreement
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BB&T VARIABLE INSURANCE FUNDS
By:____________________________
Title:_________________________
_______________________________
By:____________________________
Title:_________________________
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Dated: ___________
Schedule C
to the
Distribution Agreement
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BB&T VARIABLE INSURANCE FUNDS [ ]
By:__________________________
Title: ______________________
By:_________________________
Title: _____________________
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Dated: ____________
Schedule D
to the
Distribution Agreement
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BB&T VARIABLE INSURANCE FUNDS
By:__________________________
Title:_______________________
_____________________________
By:__________________________
Title:_______________________
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