EXHIBIT 23(e)
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
FORM OF DISTRIBUTOR'S CONTRACT
Distributor's Contract (the "Agreement") dated as of May 1, 2003, by and between
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST, a Massachusetts business trust (the
"Trust"), and XXXX XXXXXXXXX FUNDS DISTRIBUTOR, INC. (the "Distributor").
WHEREAS, the Trust and the Distributor are desirous of entering into an
agreement providing for the distribution of certain classes of shares of the
Trust by the Distributor;
NOW THEREFORE, in consideration of the mutual agreements contained in the
Terms and Conditions of Distributor's Contract attached to and forming a part of
this Contract (the "Terms and Conditions"), the Trust hereby appoints the
Distributor as a distributor of such shares of the Trust, and the Distributor
hereby accepts such appointment, all as set forth in the Terms and Conditions.
A copy of the Agreement and Declaration of Trust of the Trust, as amended,
is on file with the Secretary of The Commonwealth of Massachusetts and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Trust as Trustees and not individually, and that the obligations of or arising
out of this instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the Trust.
IN WITNESS WHEREOF, XXXX XXXXXXXXX VARIABLE INSURANCE TRUST and XXXX
XXXXXXXXX FUNDS DISTRIBUTOR, INC. have each caused this Distributor's Contract
to be signed in duplicate on its behalf, all as of the day and year first above
written.
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
By:
Name:
Title:
XXXX XXXXXXXXX FUNDS DISTRIBUTOR, INC.
By:
Name:
Title:
TERMS AND CONDITIONS
OF
DISTRIBUTOR'S CONTRACT
1. SALES OF SHARES TO THE DISTRIBUTOR AND SALES BY THE DISTRIBUTOR. The
Distributor will have the right as principal, to sell shares of beneficial
interest ("shares") of the Trust's Class 1 shares and Class 2 shares (each a
"Class" and collectively the "Classes") of each portfolio of the Trust
represented by a separate series of shares (a "Fund") directly to insurance
company separate accounts and, upon further direction from the Trust, to other
entities determined by the Trust to be qualified for look through treatment
under Section 817 of the Internal Revenue Code of 1986, as amended, against
orders therefor at the applicable public offering price as described below. For
such purposes, the Distributor will have the right to purchase shares at the
public offering price as described below.
The Trust shall sell through the Distributor, as the Trust's agent, shares
to eligible investors as described in the Prospectus. All orders through the
Distributor shall be subject to acceptance and confirmation by the Trust. The
Trust shall have the right, at its election, to deliver either shares issued
upon original issue or treasury shares.
Prior to the time of transfer of any shares by the Trust to, or on the
order of, the Distributor or any introducing broker or participating broker, the
Distributor shall pay or cause to be paid to the Trust or to its order an amount
in New York clearing house funds equal to the applicable public offering price
of the shares. Upon receipt of registration instructions in proper form, the
Distributor will transmit or cause to be transmitted such instructions to the
Trust or its agent for registration of the shares purchased. The public offering
price of each Class shall be the net asset value of such shares.
On every sale, the Fund shall receive the net asset value of the shares.
The net asset value of shares shall be determined in the manner provided in the
Agreement and Declaration of Trust and By-laws of the Trust, as then amended.
2. FEES. For its services as distributor of the Fund's Class 2 shares,
the Trust shall pay the Distributor on behalf of the Fund a monthly distribution
fee at an annual rate equal to 0.25% of the average daily net assets of the Fund
attributable to its Class 2 shares, and otherwise on the terms and conditions
set forth in any distribution plan in effect for Class 2 shares, as amended from
time to time (a "Distribution Plan"). Any such distribution fee shall be accrued
daily and paid monthly to the Distributor as soon as practicable after the end
of the calendar month in which it accrues, but in any event within 5 business
days following the last calendar day of each month.
3. RESERVATION OF RIGHT NOT TO SELL. The Trust reserves the right to
refuse at any time or times to sell any of its shares for any reason.
4. USE OF THIRD PARTIES; NON-EXCLUSIVITY; SALES OF SHARES BY THE TRUST.
The Distributor may employ such third parties, including one or more
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participating brokers or introducing brokers, for the purposes of selling shares
of the Trust as the Distributor, in its sole discretion, shall deem advisable or
desirable. The Distributor may not enter into arrangements to act as distributor
with other issuers without the consent of the Trust. The Trust acknowledges that
the Distributor acts as distributor for Xxxx Xxxxxxxxx Series Trust and that
Distributor has several affiliates that act as distributor for other issuers.
The Trust reserves the right to issue shares at any time directly to its
shareholders as a stock dividend or stock split and to sell shares directly to
its shareholders or other persons at not less than net asset value.
5. REPURCHASE OF SHARES. The Distributor will act as agent for the Trust
in connection with the repurchase and redemption of shares by the Trust upon the
terms and conditions set forth in the then current prospectus and statement of
additional information (collectively, the "Prospectus") of the Trust or as the
Trust acting through its Trustees may otherwise direct. The Distributor may
employ such third parties, including one or more participating brokers or
introducing brokers, for such purposes as the Distributor, in its sole
discretion, shall deem to be advisable or desirable.
6. BASIS OF PURCHASES AND SALES OF SHARES. The Distributor's obligation
to sell shares hereunder shall be on a best efforts basis only and the
Distributor shall not be obligated to sell any specific number of shares. Shares
will be sold by the Distributor only against orders therefor. The Distributor
will not purchase shares from anyone other than the Trust except in accordance
with Section 5 hereof, and will not take "long" or "short" positions in shares
contrary to any applicable provisions of the Agreement and Declaration of Trust
of the Trust, as amended or restated from time to time.
7. RULES OF SECURITIES ASSOCIATIONS, ETC. As the Trust's agent, the
Distributor may sell and distribute shares in such manner not inconsistent with
the provisions hereof and the Trust's Prospectus as the Distributor may
determine from time to time. In this connection, the Distributor shall comply
with all laws, rules and regulations applicable to it, including, without
limiting the generality of the foregoing, all applicable rules or regulations
under the Investment Company Act of 1940 Act, as amended (together with the
rules and regulations thereunder, the "1940 Act") and of any securities
association registered under the Securities Exchange Act of 1934, as amended
(together with the rules and regulations thereunder, the "1934 Act"). The
Distributor will conform to the Conduct Rules of the NASD and the securities
laws of any jurisdiction in which it sells, directly or indirectly, any shares.
The Distributor also agrees to furnish to the Trust sufficient copies of any
agreement or plans it intends to use in connection with any sales of shares in
adequate time for the Trust to file and clear them with the proper authorities
before they are put in use, and not to use them until so filed and cleared.
8. INDEPENDENT CONTRACTOR. The Distributor shall be an independent
contractor and neither the Distributor nor any of its officers or employees as
such, is or shall be an employee of the Trust. The Distributor is responsible
for its own conduct and the employment, control and conduct of its agents and
employees and for injury to such agents or employees or to others through its
agents or employees. The Distributor assumes full responsibility for its agents
and employees under applicable statutes and agrees to pay all employer taxes
thereunder.
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9. REGISTRATION AND QUALIFICATION OF SHARES. The Trust agrees to execute
such papers and to do such acts and things as shall from time to time be
reasonably requested by the Distributor for the purpose of maintaining the
registration of each Fund of the Trust and the Trust under the Securities Act of
1933, as amended (the "1933 Act") and the 1940 Act, to the end that there will
be available for sale from time to time such number of shares as the Distributor
may reasonably be expected to sell. The Trust may also contract with BISYS Fund
Services Ohio, Inc. ("BISYS Fund Services") to perform such services, in which
event the Distributor agrees to look solely to BISYS Fund Services in the event
of any breach of the agreements of the Trust set forth in this Section 9. The
Trust or BISYS Fund Services shall advise the Distributor promptly of (a) any
action of the Securities and Exchange Commission or any authorities of any state
or territory, of which it may be advised, affecting registration or
qualification of the Trust, a Fund or the shares thereof, or rights to offer
such shares for sale and (b) the happening of any event which makes untrue any
statement or which requires the making of any change in the Trust's registration
statement or prospectus in order to make the statements therein not misleading.
10. EXPENSES. The Distributor will pay all expenses of preparing, printing
and distributing advertising and sales literature (apart from expenses of
registering shares under the 1933 Act and the 1940 Act and the preparation and
printing of prospectuses and reports as required by said Acts and the direct
expenses of the issue of shares, except that the Distributor will pay the cost
of the preparation and printing of prospectuses and shareholders' reports used
by it in the sale of shares to persons other than current shareholders).
11. [Intentionally omitted]
12. INDEMNIFICATION OF TRUST. The Distributor agrees to indemnify and hold
harmless the Trust and each person who has been, is or may hereafter be, a
Trustee of the Trust against expenses reasonably incurred by any of them in
connection with any claim or in connection with any action, suit or proceeding
to which any of them may be a party, which arises out of or is alleged to arise
out of any misrepresentation or omission to state a material fact, or out of any
alleged misrepresentation or omission to state a material fact, on the part of
the Distributor or any agent or employee of the Distributor or any other person
for whose acts the Distributor is responsible or is alleged to be responsible,
unless such misrepresentation or omission was made in reliance upon written
information furnished by the Trust, PROVIDED, that in no event shall anything
contained in this Agreement be construed to protect the Trust or any such person
against any liability to which the Trust or such person would otherwise be
subject by reason of willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement. The Distributor also agrees
likewise to indemnify and hold harmless the Trust and each such person in
connection with any claim or in connection with any action, suit or proceeding
which arises out of or is alleged to arise out of the Distributor's failure to
exercise reasonable care and diligence with respect to its services rendered in
connection with investment, reinvestment, employee benefit and other plans for
shares. The term "expenses" includes amounts paid in satisfaction of judgments
or in settlements which are made with the Distributor's consent. The foregoing
rights of indemnification shall be in addition to any other rights to which the
Trust or a current or former Trustee may be entitled as a matter of law.
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13. INDEMNIFICATION OF THE DISTRIBUTOR. The Trust agrees to indemnify and
hold harmless the Distributor, its several officers, employees and directors,
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, against expenses reasonably incurred by any of them in connection
with any claim or in connection with any action, suit or proceeding to which any
of them may be a party, which arises out of or is alleged to arise out of any
misrepresentation or omission to state a material fact, or out of any alleged
misrepresentation or omission to state a material fact in the Trust's
Registration Statement or prospectus, or that arises out of any Participation
Agreement, including the Distributor's obligations to indemnify any insurance
company or any other party thereto, and do not arise from information provided
by the Distributor, its affiliates or any of their directors, officers,
employees, agents or persons acting at its direction and are not the result of
the willful misfeasance, bad faith or negligence of any such party in connection
with the performance of the Distributor's duties thereunder. Notwithstanding the
foregoing, in no event shall anything contained in this Agreement be construed
so as to protect the Distributor against any liability to the Trust or its
shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith, or negligence, in the performance of its duties
under this Agreement. The foregoing rights of indemnification shall be in
addition to any other rights to which the Distributor may be entitled as a
matter of law.
14. ASSIGMENT TERMINATES THIS AGREEMENT; AMENDMENTS OF THIS AGREEMENT.
This Agreement shall automatically terminate, without the payment of any
penalty, in the event of its assignment. This agreement may be amended only if
such amendment be approved either by action of the Trustees of the Trust or at a
meeting of the shareholders of both Classes by the affirmative vote of a
majority of the outstanding shares of the Classes, and by a majority of the
Trustees of the Trust who are not "interested persons" (as defined in Section
2(a)(19) of the 0000 Xxx) of the Trust and who have no direct or indirect
financial interest in the operation of any Distribution Plan or this Agreement
(the "Independent Trustees") by vote cast in person at a meeting called for the
purpose of voting on such approval.
15. EFFECTIVE PERIOD AND TERMINATION OF THIS AGREEMENT. This Agreement
shall take effect upon the date first above written and shall remain in full
force and effect continuously as to any Fund and each Class of shares thereof
(unless terminated automatically as set forth in Section 14 hereof) until
terminated:
(a) Either (i) by such Fund or such Class by the affirmative vote of a
majority of the outstanding shares of the Trust, or by a vote of the
majority of the Independent Trustees, or (ii) by the Distributor, in each
case upon not more than sixty (60) days' nor less than thirty (30) days'
written notice delivered or mailed by registered mail, postage prepaid, to
the other party; or
(b) Automatically as to any Fund or Class thereof at the close of
business one year from the date hereof, or upon the expiration of one year
from the effective date of the last proper continuance of this Agreement,
whichever is later, if the continuance of this Agreement is not
specifically approved at least annually by the Trustees or by the
affirmative vote of a majority of the outstanding shares of such Fund or
such Class, and by a majority of the Independent Trustees by vote cast in
person at a meeting called for the purpose of voting on such approval.
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The requirement under (b) above that the continuance of this Agreement be
"specifically approved at least annually" shall be construed in a manner
consistent with the 1940 Act.
Termination of this Agreement pursuant to this Section 15 shall be without
the payment of any penalty.
If this Agreement is terminated or not renewed with respect to one or more
Funds or Classes thereof, it may continue in effect with respect to any Fund or
any Class thereof as to which it has not been terminated or has been renewed.
16. LIMITED RECOURSE. The Distributor hereby acknowledges that the Trust's
obligations hereunder with respect to the distribution fees payable with respect
to the shares of any Fund of the Trust or a particular Class of shares of a Fund
are binding only on the assets and property belonging to such Fund or such
Class.
17. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
"affirmative vote of a majority of the outstanding shares" means the affirmative
vote, at a duly called and held meeting of shareholders, (a) of the holders of
67% or more of the shares of the Trust or the Fund, as the case may be, present
(in person or by proxy) and entitled to vote at such meeting, if the holders of
more than 50% of the outstanding shares of the Trust or the Fund, as the case
may be, entitled to vote at such meeting are present in person or by proxy, or
(b) of the holders of more than 50% of the outstanding shares of the Trust or
the Fund, as the case may be, entitled to vote at such meeting, whichever is
less.
For the purposes of this Agreement, the terms "interested persons" and
"assignment" shall have the meanings defined in the 1940 Act, subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
under said Act. Certain other items used herein that are not otherwise defined
have the meaning given in the current prospectus of the Trust or constituent
agreements or documents of the Trust.
18. PRIVACY.
(a) CONFIDENTIALITY OF INFORMATION. Nonpublic personal financial
information relating to consumers or customers of the Trust provided by, or
at the direction of the Trust to Distributor, or collected or retained by
Distributor to perform its duties as distributor shall be considered
confidential information. Distributor shall not disclose or otherwise use
nonpublic financial information relating to present or former shareholders
of the Trust other than for the purposes for which that information was
disclosed to Distributor, including use under an exception in Rule 14 or
Rule 15 of Securities and Exchange Commission Regulation S-P in the
ordinary course of business to carry out those purposes or at the direction
of the Trust.
(b) PROCEDURAL SAFEGUARDS. Distributor shall maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized
access to or use of records and information relating to consumers and
customers of the Trust.
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(c) TRUST PRIVACY POLICY. The Trust represents to Distributor that it
has adopted a statement of its privacy policies and practices as required
by Securities and Exchange Commission Regulation S-P and agrees to provide
Distributor with a copy of that statement annually.
19. GOVERNING LAW. This Agreement shall be governed by, and provisions
shall be construed in accordance with, the laws of the State of Ohio.
20. ANTI-MONEY LAUNDERING COMPLIANCE.
(a) Each of Distributor and the Trust acknowledges that it is a
financial institution subject to the USA Patriot Act of 2001 and the Bank
Secrecy Act (collectively, the "AML Acts"), which require, among other
things, that financial institutions adopt compliance programs to guard
against money laundering. Each represents and warrants to the other that it
is in compliance with and will continue to comply with the AML Acts and
applicable regulations in all relevant respects. The Distributor shall also
provide written notice to each person or entity with which it entered an
agreement prior to the date hereof with respect to sale of the Trust's
shares, such notice informing such person of anti-money laundering
compliance obligations applicable to financial institutions under
applicable laws and, consequently, under applicable contractual provisions
requiring compliance with laws.
(b) Each of Distributor and the Trust agrees that it will take such
further steps, and cooperate with the other, to facilitate compliance with
the AML Acts, including but not limited to the provision of copies of its
written procedures, policies and controls related thereto ("AML
Operations"). Distributor undertakes that it will grant to the Trust, the
Trust's anti-money laundering compliance officer and regulatory agencies,
reasonable access to copies of Distributor's AML Operations, books and
records pertaining to the Trust only. It is expressly understood and agreed
that the Trust and the Trust's compliance officer shall have no access to
any of Distributor's AML Operations, books or records pertaining
specifically to other clients of Distributor.
21. NOTICES. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to the party required to be served
with such notice at the following address: if to the Trust, to it at AXA
Xxxxxxxxx Investment Management LLC, 0 Xxxxxx Xxx, Xxxxxx, Xxxxxxxxxx, 00000,
Attn: Xxxxxx X. Xxxxx, Esq., with a copy to X.X. Xxxxxxxxx, Esq., Ropes & Xxxx,
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000; and if to
Distributor, to it at Xxxx Xxxxxxxxx Funds Distributor, Inc., 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx, 00000, Attn: President, or at such other address as such party
may from time to time specify in writing to the other party pursuant to this
Section.
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