EXHIBIT 99.B6(a)
DISTRIBUTION AGREEMENT
NATIONS ANNUITY TRUST
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
This is to confirm that, in consideration of the
agreements hereinafter contained, the undersigned, Nations Annuity Trust
(the "Trust"), a Delaware business trust, has agreed that Xxxxxxxx Inc.
(the "Distributor") shall be, for the period of this Agreement, the
exclusive distributor of the shares of common stock in all classes of
shares ("Shares") of the investment portfolios of the Trust listed on
Schedule I (individually, a "Portfolio" and collectively the
"Portfolios"). Absent written notification to the contrary by either the
Trust or the Distributor, each new investment portfolio established in
the future shall automatically become a "Portfolio" for all purposes
hereunder and shares of each new class established in the future shall
automatically become "Shares" for all purposes hereunder as if set forth
on Schedule I.
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 the Trust's registration statement and prospectus then in
effect under the Securities Act of 1933, as amended (the "1933 Act"),
and will transmit promptly any orders received by it for the purchase or
redemption of Shares to the Trust or its transfer agent.
1.2 The Distributor agrees to use appropriate efforts to
solicit orders for the sale of Shares and will undertake such
advertising and promotion as it believes appropriate in connection with
such solicitation. The Trust understands that the Distributor is and may
in the future be the distributor of shares of other investment company
portfolios including portfolios having investment objectives similar to
those of the Portfolios. The Trust further understands that existing and
future investors in the Portfolios may invest in shares of such other
portfolios. The Trust agrees that the Distributor's duties to such
portfolios shall not be deemed in conflict with its duties to the Trust
under this paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance
such activities as it deems reasonable and 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. The
Distributor shall be responsible for reviewing and providing advice and
counsel on all sales literature (e.g., advertisements, brochures and
shareholder communications) with respect to each of the Portfolios. In
addition, the Distributor will provide one or more
1
persons, during normal business hours, to respond to telephone questions
with respect to the Portfolios.
1.4 All activities by the Distributor and its agents and
employees as distributor of Shares shall comply 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 ("1940 Act") by the Securities and Exchange
Commission (the "SEC") or any securities association registered under
the Securities Exchange Act of 1934, as amended.
1.5 Whenever in their judgment such action is warranted by
unusual market, economic or political conditions, or by other
circumstances of any kind, the Trust's officers may decline to accept
any orders for, or make any sales of Shares until such time as those
officers deem it advisable to accept such orders and to make such sales.
1.6 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
registration or qualification of Shares for sale in such states as the
Distributor may designate to the Trust and the Trust may approve, and
the Trust shall pay all fees and other expenses incurred in connection
with such registration or qualification.
1.7 The Trust shall furnish from time to time, for use in
connection with the sale of Shares, such information with respect to the
Portfolios and Shares as the 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 the Distributor upon request with: (a)
audited annual and unaudited semi-annual statements of the Trust's books
and accounts with respect to each Portfolio, and, (b) from time to time
such additional information regarding the Portfolios' financial
condition as the Distributor may reasonably request.
1.8 The Distributor may be reimbursed for all or a portion
of the expenses described above to the extent permitted by a
distribution plan adopted by the Trust on behalf of a Portfolio pursuant
to Rule 12b-1 under the 1940 Act. No provision of this Agreement shall
be deemed to prohibit any payments by a Portfolio to the Distributor or
by a Portfolio or the Distributor to investment dealers, banks or other
financial institutions through whom shares of the Portfolio are sold
where such payments are made under a distribution plan adopted by the
Trust on behalf of such Portfolio pursuant to Rule 12b-1 under the 1940
Act. In addition, the Distributor shall be entitled to retain any
front-end sales charge imposed upon the sale of the shares (and reallow
a portion thereof) as specified in the Portfolio's Registration
Statement and the Trust shall pay to the Distributor the proceeds from
any contingent deferred sales charge imposed on the redemption of the
shares as specified in the Portfolio's Registration Statement.
1.9 The Distributor will execute and deliver agreements
with broker/dealers, financial institutions and other industry
professionals based on the forms attached hereto or based on the
additional forms of agreement approved from time to time by the Trust's
Board of Trustees with respect to the various classes of shares of the
Portfolios, including but not limited
2
to forms of sales support agreements approved in connection with a
distribution approved in accordance with Rule 12b-1 under the 0000 Xxx.
2. Representations; Indemnification.
2.1 The Trust represents to the Distributor that all
registration statements and prospectuses filed by the Trust with the SEC
under the 1933 Act, with respect to Shares have been prepared in
conformity with the requirements of the 1933 Act and rules and
regulations of the SEC thereunder. As used in this Agreement, the terms
"registration statement" and "prospectus" shall mean any registration
statement and then current prospectus (together with any related then
current statement of additional information) filed with the SEC with
respect to Shares, and any amendments and supplements thereto which at
any time shall have been filed therewith. 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
the 1933 Act and the rules and regulations of the SEC; that all
statements of fact contained in any such registration statement and
prospectus will be true and correct when such registration statement and
prospectus become effective; and that neither any registration statement
nor any prospectus when any 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 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 which in light of future
developments, may, in the opinion of the Trust's counsel, be necessary
or advisable. The Trust shall promptly notify the Distributor of any
advice given to it by the Trust's counsel regarding the necessity or
advisability so to amend or supplement such registration statement or
prospectus. 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 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.
2.2 The Trust authorizes the Distributor and dealers to
use any prospectus in the form furnished from time to time in connection
with the sale of Shares and represented by the Trust as being the then
current form of prospectus. 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
1933 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 the Distributor, its officers
and directors, or any such controlling person, may incur under the 1933
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
3
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 any registration statement or prospectus or necessary to make
any statement in such documents 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 any untrue
statement or alleged untrue statement or omission or alleged omission
made in any registration statement or prospectus or in any financial or
other statements in reliance upon and in conformity with any information
furnished to the Trust by the Distributor or any affiliate thereof and
used in the preparation thereof; and further provided 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 the performance of its duties, or by reason of
the Distributor's 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 or directors, or any such
controlling person, such notification to be given by letter or by
telegram addressed to the Trust at its principal office and sent to the
Trust by the person against whom such action is brought, within a
reasonable period of time 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 2.2. 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,
which approval shall not unreasonably be withheld. In the event the
Trust elects to assume the defense of any such suit and retain counsel
of good standing approved by the Distributor, the defendant or
defendants in such suit shall bear the fees and expenses 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 the
Distributor reasonably does not 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 2.2 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, or any controlling person, and shall survive
the delivery of any Shares. This agreement of indemnity will inure
exclusively to the Distributor's benefit, to the benefit of its several
officers and directors, and their respective estates, and to the benefit
of the 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 directors in
connection with the issue and sale of any Shares.
2.3 The Distributor agrees to indemnify, defend and hold
the Trust, its several officers and directors, and any person who
controls the Trust within the meaning of Section 15 of the 1933 Act free
and harmless from and against any and all claims, demands, liabilities
and
4
expenses (including the costs of investigation or defending such claims,
demands or liabilities and any counsel fees incurred in connection
therewith) which the Trust, its officers or directors or any such
controlling person, may incur under the 1933 Act or under common law or
otherwise, but only to the extent that such liability or expense
incurred by the Trust, its officers or directors, 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 information furnished by the Distributor or any affiliate
thereof to the Trust or its counsel and used in the Trust's registration
statement or 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 by
the Distributor or any affiliate thereof to the Trust or its counsel
required to be stated in such answers or necessary to make such
information not misleading. The Distributor's agreement to indemnify the
Trust, its officers and directors, and any such controlling person, as
aforesaid, is expressly conditioned upon the Distributor's being
notified of any action brought against the Trust, its officers or
directors, or any such controlling person, such notification to be given
by letter or telegram addressed to the Distributor at its principal
office in Little Rock, Arkansas and sent to the Distributor by the
person against whom such action is brought, within a reasonable period
of time 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 or any affiliate thereof, and in any
other event the Trust, its officers or directors 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 so to notify
the Distributor of any such action shall not relieve the Distributor or
any affiliate thereof from any liability which the Distributor or any
affiliate thereof may have to the Trust, its officers or directors, 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 the Distributor's indemnity agreement contained in this
paragraph 2.3.
2.4 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 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 1933 Act, or if and so long as a
current prospectus, as required by Section 10(b) of the 1933 Act is not
on file with the SEC; provided, however, that nothing contained in this
paragraph 2.4 shall in any way restrict or have any application to or
bearing upon the Trust's obligation to repurchase Shares from any
shareholder in accordance with the provisions of the Trust's prospectus
or Declaration of Trust.
2.5 The Trust agrees to advise the Distributor as soon as
reasonably practical:
(a) of any request by the SEC for amendments to
the registration statement or prospectus then in effect;
5
(b) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or prospectus
then in effect or of the initiation 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;
(d) of all actions of the SEC with respect to
any amendment to any registration statement or prospectus which may from
time to time be filed with the SEC; and
(e) if a current prospectus is not on file with
the SEC.
For purposes of this section, informal requests by or acts
of the staff of the SEC shall not be deemed actions of or requests by
the SEC.
3. Confidentiality.
The Distributor agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the
Trust all records and other information relative to the Portfolios
and/or the Trust 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 Trust, 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
Trust.
4. Limitations of Liability.
Except as provided in paragraph 2.3, the Distributor shall
not be liable for any error of judgment or mistake or law or for any
loss suffered by the Trust or any Portfolio in connection with matters
to which this agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard of its obligations
and duties under this agreement.
5. Term.
This agreement shall become effective on the date of its
execution and, unless sooner terminated as provided herein, shall
continue in effect for a period of two years from the date written
below. This Agreement shall thereafter continue from year to year,
provided such continuance is specifically approved at least annually by
(i) the Trust's Board of Trustees or (ii) by a vote of a majority (as
defined in the 0000 Xxx) of the outstanding voting securities of the
Portfolio, provided that in either event the continuance is also
approved by the majority of the Trust's Trustees who are not parties to
this agreement or interested persons (as defined in the
6
1940 Act) of any such party, by vote cast in person at a meeting called
for the purpose of voting on such approval. This agreement is not
assignable and is terminable with respect to a Portfolio, without
penalty, on not less than sixty days' notice, by the Trust's Board of
Trustees, by vote of a majority (as defined in the 0000 Xxx) of the
outstanding voting securities of such Portfolio, or by the Distributor.
This agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
6. Miscellaneous.
6.1 No provision of this Agreement may be 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 termination is sought.
6.2 This agreement shall be governed by the laws of the
State of Arkansas.
Please confirm that the foregoing is in accordance with
your understanding by indicating your acceptance hereof at the place
indicated below, whereupon it shall become a binding agreement between
us.
Yours very truly,
NATIONS ANNUITY TRUST
By:
------------------------------
Name: A. Xxx Xxxxxx
Title: Chairman of the
Board of Trustees
Accepted:
XXXXXXXX INC.
By:
-----------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
Dated as of February _____, 1998
7
SCHEDULE I
1. Nations Balanced Assets Portfolio
2. Nations Disciplined Equity Portfolio
3. Nations International Growth Portfolio
4. Nations Managed Index Portfolio
5. Nations Managed SmallCap Index Portfolio
6. Nations Xxxxxxx Focused Equities Portfolio
7. Nations Xxxxxxx Growth & Income Portfolio
8. Nations Value Portfolio
Approved: December 9, 1997
8
