XXXXXXX XXXXX VARIABLE INSURANCE TRUST
DISTRIBUTION AGREEMENT
, 1997
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Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxxxx Xxxxx Variable Insurance Trust (the
"Trust"), an open-end management investment company organized as a business
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trust under the laws of the State of Delaware, and consisting of one or more
separate series, has appointed you, the "Distributor," and that you shall be the
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exclusive distributor in connection with the offering and sale of the shares of
beneficial interest, par value $[.0001] per share (the "Shares"), corresponding
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to each of the series of the Trust listed in Exhibit A, as the same may be
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supplemented from time to time (each such series, a "Fund"). Each Fund may
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offer one or more classes of its shares (each a "Class") which Classes shall
have such relative rights and conditions and shall be sold in the manner set
forth from time to time in the Trust's Registration Statements, as defined
below. The organization, administration and policies of each Fund are described
in its respective Prospectuses and SAIs (as those terms are defined below).
(This letter, as amended from time to time, shall be referred to hereinafter as
the "Agreement".)
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1. DEFINITIONS. (a) The terms which follow, when used in this Agreement,
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shall have the meanings indicated.
"Effective Date" shall mean the date that any Registration Statement or
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any post-effective amendment thereto becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus relating
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to the Shares of a Fund or Funds or one or more Classes included in any
Registration Statement or filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 497(a).
"Prospectus" shall mean any prospectus relating to the Shares of a Fund
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or Funds or one or more Classes, filed with the Commission pursuant to Rule
497 or, if no filing pursuant to Rule 497 is required, the form of final
prospectus relating
thereto included in any Registration Statement, in each case together with any
amendments or supplements thereto.
"Registration Statement" shall mean any registration statement on Form N-
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1A relating to the Shares of a Fund, including all exhibits thereto, as of the
Effective Date of the most recent post-effective amendment thereto. The
registration statements of the Trust may be separately filed with the
Commission according to its fixed income, equity and money market fund
offerings.
"Rule 497" refers to such rule (or any successor rule or rules) under the
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Securities Act (as defined in Section 2 below).
"SAI" shall mean any statement of additional information relating to the
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Shares of a Fund or Funds or one or more Classes, filed with the Commission
pursuant to Rule 497 or, if no filing pursuant to Rule 497 is required, the
final statement of additional information included in any Registration
Statement.
The "Initial Acceptance Date" of any Fund shall mean the first date on
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which the Trust sells Shares of such Fund pursuant to any Registration
Statement.
References in this Agreement to "Rules and Regulations" shall be deemed
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to be references to such rules and regulations as then in effect, and
references to this Agreement and the Fund Agreements (as defined in Section 2
below), shall be deemed to be references to such agreements as then in effect.
2. REPRESENTATIONS AND WARRANTIES. The Trust represents and warrants to and
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agrees with you, for your benefit and the benefit of each Authorized
Dealer (as defined in Section 3 below), as set forth below in this
Section 2. Each of the representations, warranties and agreements made
in this Section 2 shall be deemed made on the date hereof, on the date of
any filing of any Prospectus pursuant to Rule 497 and any Effective Date
after the date hereof, with the same effect as if made on each such date.
(a) The Trust meets the requirements for use of Form N-1A under the
Securities Act of 1933, as amended (the "Securities Act"), the Investment
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Company Act of 1940, as amended (the "Investment Company Act"), and the
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Rules and Regulations of the Commission under each such Act and in
respect of said form (or of such successor form as the Commission may
adopt). The Trust has filed with the Commission an initial Registration
Statement (File Number 33-_____) on Form N-1A with respect to an
indefinite number of Shares of the Funds and is duly registered as an
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open-end management investment company. The Registration Statement has
become effective and no stop order suspending its effectiveness has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission.
(b) The Trust's notification of registration on Form N-8A (as amended)
complies with the applicable requirements of the Investment Company Act
and the Rules and Regulations thereunder.
(c) Each Registration Statement, Prospectus and SAI conform, and any further
amendments or supplements to any Registration Statement, Prospectus or
SAI will conform, in all material respects, with the Securities Act and
Investment Company Act and the Rules and Regulations thereunder; the
Prospectuses and the SAIs do not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and, on each Effective Date, the
Registration Statements did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; provided, however, that the Trust makes no representations or
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warranties as to the information contained in or omitted from any
Registration Statement, Prospectus or SAI in reliance upon and in
conformity with information furnished in writing to the Trust by you
(with respect to information relating solely to your role as distributor
of the Shares of the Funds) expressly for use therein.
(d) No order preventing or suspending the use of any Preliminary Prospectus
has been issued by the Commission, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Rules and Regulations of the
Commission thereunder, and did not contain 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust by you (with respect to
information relating solely to your role as the exclusive distributor of
the Shares of the Funds) expressly for use therein.
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(e) The Trust has been duly created and is lawfully and validly existing as a
business trust under the laws of the State of Delaware, and has, on the
date hereof, and will have, on and after the date hereof, full power and
authority to own its properties and conduct its business as described in
each Registration Statement, Prospectus and SAI, and is duly qualified to
do business under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business.
(f) The Trust's authorized capitalization is as set forth in the Registration
Statements. Issuance of the Shares of the Funds as contemplated by this
Agreement and by each Prospectus and SAI has been duly and validly
authorized, and the Shares of the Funds, when issued and paid for as
contemplated hereby and thereby, will be fully-paid and, except as
contemplated by the Prospectus and SAI, nonassessable and will conform to
the description thereof contained in the corresponding Prospectus and
SAI. The holders of outstanding shares of each Fund are not entitled to
preemptive or other rights to subscribe for the Shares of any Fund, other
than as contemplated by the Prospectus and SAI relating to each Fund.
(g) This Agreement has been duly authorized, executed and delivered by the
Trust.
(h) On or prior to the Initial Acceptance Date, all of the agreements
described in each Prospectus and SAI relating to the Fund or Funds whose
Shares are first being sold on such date (collectively, the "Fund
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Agreements") will have been duly authorized, executed and delivered by
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the Trust, and will comply in all material respects with the Investment
Company Act and the Rules and Regulations thereunder.
(i) The Fund Agreements constitute or will constitute, on and after the
Initial Acceptance Date, assuming due authorization, execution and
delivery by the parties thereto other than the Trust, valid and legally
binding instruments, enforceable in accordance with their respective
terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(j) No consent, approval, authorization or order of any court or governmental
agency or body is or shall be required, as the case may be, for the
consummation from time to time of the transactions contemplated by this
Agreement and the Fund Agreements, except such as may be required (i)
under
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the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Investment Company Act, the Rules and Regulations
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under each of the foregoing or the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD") (any of which that
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were required before offers were made will have been obtained before such
offers were made and all of which will have been obtained, with respect
to each Fund, by the Effective Date of the post-effective amendment
relating to the Fund, except for those which become required under such
acts or rules or any other law or regulation after the Fund's Effective
Date but that were not required before such Effective Date, all of which
shall be obtained in a timely manner) or (ii) state securities laws of
any jurisdiction in connection with the issuance, offer or redemption of
the Shares of each Fund by the Trust.
(k) The operations and activities of the Trust and each Fund as contemplated
by the Prospectuses and the SAIs, the performance by the Trust and each
Fund of this Agreement and the Fund Agreements, the making of the offer
or the sale of Shares of each Fund and consummation from time to time of
such sales, the redemption of Shares of each Fund, or any other
transactions contemplated herein, in the Fund Agreements, in the
Prospectuses or in the SAIs, will not conflict with, result in a breach
of, or constitute a default under, the declaration of trust or the
Trust's By-laws or, in any material respect, the terms of any other
agreement or instrument to which the Trust is a party or by which it is
bound, or any order or regulation applicable to the Trust of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Trust.
(l) There is not pending, or to the best knowledge of the Trust, threatened,
any action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator to which the Trust is (or, to the
best knowledge of the Trust, is threatened to be) a party, of a character
required to be described in any Registration Statement, Prospectus or SAI
which is not described as required.
(m) There is no contract or other document of a character required to be
described in any Registration Statement, Prospectus or SAI, or to be
filed as an exhibit, which is not described or filed as required.
(n) Except as stated or contemplated in the Registration Statements,
Prospectuses and SAIs, (i) the Trust has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions,
whether or
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not in the ordinary course of business, that are material to the Trust,
(ii) there has not been any material adverse change, or, any development
involving a prospective material adverse change, in the condition
(financial or other) of the Trust, (iii) there has been no dividend or
distribution paid or declared in respect of the Trust, and (iv) the Trust
has not incurred any indebtedness for borrowed money.
(o) Each Fund will elect or has elected to be treated as a regulated
investment company as defined in Section 851(a) of the Internal Revenue
Code of 1986 for its first taxable year and will operate so as to qualify
as such in its current and all subsequent taxable years.
(p) Except as stated or contemplated in any Prospectus or SAI, the Trust owns
all of its assets free and clear in all material respects of all liens,
security interests, pledges, mortgages, charges and other encumbrances or
defects.
3. SELECTION OF AUTHORIZED DEALERS; OTHER SERVICES AS DISTRIBUTOR.
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(a) With respect to each Class subject to a sales charge, the Distributor
shall have the right on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions
herein set forth, to make arrangements for (i) securities dealers
(including bank-affiliated dealers) that are members in good standing of
the NASD, (ii) foreign securities dealers which are not eligible for
membership in the NASD who have agreed to comply as though they were NASD
members with the provisions of Sections 2730, IM-2730, 2740, IM-2740,
2750 and IM-2750 of the Conduct Rules of the NASD and with Section 2420
thereof as that Section applies to a non-NASD member broker or dealer in
a foreign country, or (iii) banks, as defined in Section 3(a)(6) of the
Exchange Act, which are duly organized and validly existing in good
standing under the laws of the jurisdiction in which they are organized,
to solicit orders to purchase Shares of the Funds. Such securities
dealers and banks ("Authorized Dealers") selected by you in accordance
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with dealer agreements with you ("Dealer Agreements") shall solicit such
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orders pursuant to their respective Dealer Agreements. You will act only
on your own behalf as principal in entering into each such Dealer
Agreement. With respect to each Class that is not subject to a sales
charge, you shall act as Principal Underwriter of such shares.
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(b) You acknowledge that the only information provided to you by the Trust is
that contained in each Registration Statement, Prospectus and SAI.
Neither you nor any Authorized Dealer nor any other person is authorized
by the Trust to give any information or to make any representations,
other than those contained in the relevant Registration Statement,
Prospectus and SAI and any sales literature approved by appropriate
representatives of the Trust. You may undertake or arrange for such
advertising and promotion as you believe is reasonable in connection with
the solicitation of orders to purchase Shares of a Fund; provided,
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however, that you will provide the Trust with and obtain the Trust's
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approval of copies of any advertising and promotional materials approved,
produced or used by you prior to their use. You will file such materials
with the Commission and the NASD as may be required by the Exchange Act
and the Investment Company Act and the Rules and Regulations thereunder
and by the rules of the NASD.
(c) You agree to perform such services as are described in each Registration
Statement, Prospectus and SAI as to be performed by the Distributor
including, without limitation, distributing Account Information Forms.
(d) All of your activities as distributor of the Shares of the Funds shall
comply, in all material respects, with all applicable laws, Rules and
Regulations, including, without limitation, all rules and regulations
made or adopted by the Commission or by any securities association
registered under the Exchange Act, including the NASD, as in effect from
time to time.
4. OFFERING BY THE DISTRIBUTOR.
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(a) You will act as agent for the Trust in the distribution of Shares of the
Funds and you agree to use your best efforts to offer and sell Shares of
the Funds subject to a sales charge at the public offering price as set
forth in the relevant Prospectus, subject to any waivers or reductions of
any applicable sales charges, dealer allowances and fees as you and each
of the Authorized Dealers, if any, shall have agreed to in writing. You
may also subscribe for Shares of a Fund as principal for resale to
investors or for resale to Authorized Dealers. You shall devote
reasonable time and effort to effect sales of Shares of the Funds, but
you shall not be obligated to sell any specific number of Shares.
Nothing contained herein shall prevent you from entering into like
distribution arrangements with other investment companies.
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(b) The Distributor is authorized to purchase Shares of any Fund presented to
it by Authorized Dealers at the price determined in accordance with, and
in the manner set forth in, the Prospectus for such Fund.
(c) Unless you are otherwise notified by the Trust, any right granted to you
to accept orders for Shares of any Fund or to make sales on behalf of the
Trust or to purchase Shares of any Fund for resale will not apply to (i)
Shares issued in connection with the merger or consolidation of any other
investment company with the Trust or its acquisition, by purchase or
otherwise, of all or substantially all of the assets of any investment
company or substantially all the outstanding securities of any such
company, and (ii) Shares that may be offered by the Trust to shareholders
by virtue of their being such shareholders.
5. COMPENSATION.
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(a) With respect to any Class which is sold subject to a sales charge, you
will be entitled to receive that portion of the sales charges applicable
to sales of Shares of such Class and not reallocated to Authorized
Dealers as set forth in the relevant Prospectus, subject to any waivers
or reductions of such sales charges, if any, in accordance with Section 4
of this Agreement. In addition, you shall be entitled to receive the
entire amount of any contingent deferred sales charge imposed and paid by
shareholders upon the redemption or repurchase of Shares of any Class
subject to such charges as set forth in the relevant Prospectus, subject
to any waivers or reductions of such sales charges that may be disclosed
in such Prospectus. With respect to any shares sold subject to a
contingent deferred sales charge, such charge shall be payable in such
amounts as disclosed in the applicable Prospectus as the same was in
effect at the time of sale. The right to receive any contingent deferred
sales charge granted hereunder shall apply to all shares sold during the
term of this Agreement, and to the extent permitted by the Investment
Company Act and other applicable laws, shall continue with respect to
such shares notwithstanding termination of this Agreement. In connection
with each transaction in which you are acting as an Authorized Dealer,
you also will be entitled to that portion of the sales charges, if any,
payable to an Authorized Dealer in such transaction.
(b) The Trust may enter into Plans of Distribution pursuant to Rule 12b-1
under the 1940 Act ("Rule 12b-1 Plans") with respect to certain classes
of certain Funds. The Trust shall pay to you as distributor of such
Classes the
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compensation pursuant to the Rule 12b-1 Plans as shall be set forth from
time to time in the Prospectuses and SAIs and provided for under the Rule
12b-1 Plan.
(c) The amounts payable as compensation pursuant to this Section 5 shall be
subject to the limitations in Section 2830 of the Conduct Rules of the
NASD.
6. UNDERTAKINGS. The Trust agrees with you, for your benefit, that:
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(a) The Trust shall sell Shares of the Funds so long as it has such Shares
available for sale and shall cause the transfer agent (the "Transfer
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Agent") to record on its books the ownership of such Shares registered in
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such names and amounts as you have requested in writing or other means,
as promptly as practicable after receipt by the Trust of the payment
therefor. The Trust will make such filings under the Investment Company
Act with, and pay such fees to, the Commission as are necessary to
register Shares of any Fund sold by you on behalf of the Trust. Prior to
the termination of this Agreement, the Trust will not file any amendment
to any Registration Statement or amendment or supplement to any
Prospectus or SAI (whether pursuant to the Securities Act, the Investment
Company Act, or otherwise) without prior notice to you; provided,
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however, that nothing contained in this Agreement shall in any way limit
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the Trust's right to file such amendments to any Registration Statement,
or amendments or supplements to any Prospectus or SAI as the Trust may
deem advisable, such right being in all respects absolute and
unconditional, it being understood that this proviso shall not relieve
the Trust of its obligation to give prior notice of any such amendment or
supplement to you. Subject to the foregoing sentence, if the filing of
any Prospectus or SAI, as the case may be, contained in any Registration
Statement at the relevant Effective Date, or any amendment or supplement
thereto, is required under Rule 497, the Trust will cause such Prospectus
or SAI, and any amendment or supplement thereto, to be filed with the
Commission pursuant to the applicable paragraph of Rule 497 within the
time period prescribed and will, if requested, provide evidence
satisfactory to you of such timely filing. The Trust will promptly
advise you (i) when such Prospectus or SAI shall have been filed (if
required) with the Commission pursuant to Rule 497, (ii) when, prior to
termination of this Agreement, any amendment to any Registration
Statement shall have been filed or become effective, (iii) of any request
by the Commission for any amendment of any Registration Statement or
amendment or supplement to any Prospectus or SAI or for any additional
information relating to or that could
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affect disclosure in any of the foregoing, (iv) of the issuance by the
Commission of any order suspending the effectiveness of any Registration
Statement, or suspending the registration of the Trust under the
Investment Company Act, or the institution or (to the best knowledge of
the Trust) threatening of any proceeding for that purpose, and (v) of the
receipt by the Trust of any notification with respect to the suspension
of the qualification of the offer or sale of Shares of a Fund in any
jurisdiction or the initiation or (to the best knowledge of the Trust)
threatening of any proceeding for such purpose. The Trust will use its
best efforts to prevent the issuance of any such order or suspension and,
if issued, to obtain as soon as possible the withdrawal or suspension
thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered
under the Securities Act, any event occurs as a result of which such
Prospectus or SAI would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend any Registration
Statement or amend or supplement any Prospectus or SAI to comply with the
Securities Act, the Investment Company Act or the Rules and Regulations
thereunder, the Trust will notify you promptly of any such circumstance
and promptly will prepare and file with the Commission, subject to the
third sentence of Section 6(a), an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting
requirements under the Investment Company Act and the Rules and
Regulations thereunder), the Trust will make generally available to its
shareholders and, subject to Section 8 of this Agreement, to you (with
sufficient copies for the Authorized Dealers), a report containing the
financial statements required to be included in such reports under
Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder.
(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as
many conformed copies of the Registration Statements including exhibits
thereto, on each Effective Date, as you may reasonably request for
yourself and for delivery to the Authorized Dealers and, so long as
delivery of a Prospectus or SAI by you or any Authorized Dealer may be
required by law, the number of copies of each Prospectus and each SAI as
you may reasonably request for yourself and for delivery to the
Authorized Dealers.
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(e) To the extent required by applicable state law, the Trust will use its
best efforts to arrange for the qualification of an appropriate number of
the Shares of the Funds for sale under the laws of such of the 00 xxxxxx
xx xxx Xxxxxx Xxxxxx, the District of Columbia, the Commonwealth of
Puerto Rico, the Territory of Guam, and such other jurisdiction as you
and the Trust may approve, and will maintain such qualifications in
effect as long as may be reasonably requested by you, provided that the
Trust shall not be required in connection herewith or as a condition
hereto to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction. You shall furnish
such information and other material relating to your affairs and
activities as may be required by the Trust in connection with such
qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and,
subject to Section 8 of this Agreement, the Trust, if so requested, will
furnish to you, as soon as they are available (with sufficient copies for
the Authorized Dealers), copies of all reports, communications and
financial statements sent by the Trust to its shareholders or filed by,
or on behalf of, the Trust with the Commission.
(g) On each date the Trust is required to file with the Commission a notice
under paragraph (b)(1) of Rule 24f-2 under the Investment Company Act,
the Trust, if so requested, shall furnish to you a copy of the opinion of
counsel for the Trust required by such Rule to the effect that the Shares
covered by the notice were legally issued, fully paid and nonassessable.
The Trust further agrees that if, in connection with the filing of any
post-effective amendment to any Registration Statement after the date of
this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund"
in any Prospectus or SAI that is deemed material by you, the Trust, if so
requested, shall furnish to you an opinion of counsel for the Trust,
dated the date of such post-effective amendment, to the effect of
paragraph 2 (to the extent it relates to the description of the Shares);
(ii) the Fund Agreements are amended or modified in any manner, the
Trust, if so requested, shall furnish to you an opinion of counsel
for the Trust, dated the date of such post-effective amendment; or
(iii) any change is made to the statements under the caption "Taxation" in
any Prospectus or SAI, the Trust, if so requested, shall furnish to
you an
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opinion of counsel for the Trust, dated the date of such post-
effective amendment.
Any opinion or statement furnished pursuant to this Section 6(g) shall be
modified as necessary to relate to this Agreement and the Fund Agreements and
the Rules and Regulations as then in effect and shall state that the
Authorized Dealers may rely on it.
(h) The Trust, if so requested, shall furnish to you on each subsequent
Effective Date with respect to an amendment of a Registration Statement
which first includes certified financial statements for the preceding
fiscal year, in respect of a Fund, a copy of the report of the Trust's
independent public accountants with respect to the financial statements
and selected per share data and ratios relating to such Fund, addressed
to you. The Trust further agrees that the Trust, if so requested, shall
furnish to you (i) on each date on which the Trust, pursuant to the
preceding sentence, furnishes to you a report of its independent public
accountants, a certificate of its treasurer or assistant treasurer in a
form reasonably satisfactory to you describing in reasonable detail how
the figures included under the captions "Portfolio Transactions" and
"Performance Information" (or similar captions) in the Prospectus or SAI
of such Fund and the figures relating to the aggregate amounts of
remuneration paid to officers, trustees and members of the advisory board
and affiliated persons thereof (as required by Section 30(d)(5) of the
Investment Company Act) were calculated and confirming that such
calculations are in conformity with the Rules and Regulations under the
Investment Company Act and (ii) on each date the Trust files with the
Commission the Trust's required semi-annual financial statements, a
certificate of its treasurer or assistant treasurer in a form reasonably
satisfactory to you, describing the manner in which such financial
statements were prepared and confirming that such financial statements
have been prepared in conformity with the Rules and Regulations under the
Investment Company Act.
7. CONDITIONS TO YOUR OBLIGATIONS AS DISTRIBUTOR AND PRINCIPAL UNDERWRITER.
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Your obligations as distributor of the Shares of the Funds shall be
subject to the accuracy of the representations and warranties on the part
of the Trust contained herein as of the dates when made or deemed to have
been made, to the accuracy in all material respects of the statements
made in any certificates, letters or opinions delivered pursuant to the
provisions of Sections 6 or 7 of this Agreement, to the performance
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by the Trust of its obligations hereunder and to the following additional
conditions:
(a) If filing of any Prospectus or SAI, or any amendment or supplement to any
Prospectus or SAI, or any other document is required pursuant to any
applicable provision of Rule 497, such Prospectus or SAI, or any such
amendment or supplement and other document will be filed in the manner
and within the time period required by the applicable provision of Rule
497; and no order suspending the effectiveness of the amendment shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the best knowledge of the Trust, threatened and the
Trust shall have complied with any request of the Commission for
additional information (to be included in the relevant Registration
Statement, Prospectus, SAI or as the Commission otherwise shall have
requested).
(b) At the Initial Acceptance Date with respect to each Fund, you shall have
received from counsel to the Distributors, if so requested, such opinion
or opinions, dated the Initial Acceptance Date, with respect to the
issuance and sale of the Shares, the relevant Registration Statement,
Prospectus and SAI and other related matters as you may reasonably
require, and the Trust shall have furnished to such counsel such
documents as they may request for the purpose of enabling them to pass
upon such matters. Each such opinion shall state that the Authorized
Dealers may rely on it.
(c) There shall not have been any change, or any development involving a
prospective change, in or affecting the Trust the effect of which in any
case is, in your good faith judgment, so material and adverse as to make
it impractical or inadvisable to proceed with the offering of Shares of
the Funds as contemplated by this Agreement.
(d) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; (iii) the outbreak or
escalation of hostilities involving the United States or the declaration
of a national emergency or war if the effect of any such event specified
in this Clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares of a Fund on the terms and in the manner contemplated in any
Prospectus.
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(e) The Trust shall have furnished to you such further information,
certificates and documents as you may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions, certificates or letters mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you, this Agreement and all your
obligations hereunder may be cancelled by you. In the event of such
cancellation, the Trust shall remain liable for the expenses set forth in
Section 8.
8. EXPENSES.
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(a) The Trust will pay (or will enter into arrangements providing that
parties other than you will pay) all fees and expenses:
(1) in connection with the preparation, setting in type and filing of the
Registration Statements (including Prospectuses and SAIs) under the
Securities Act or the Investment Company Act, or both, and any
amendments or supplements thereto that may be made from time to time;
(2) in connection with the registration and qualification of Shares of the
Funds for sale in the various jurisdictions in which it is determined
to be advisable to qualify such Shares of the Funds for sale (including
registering the Trust as a broker or dealer or any officer of the Trust
or other person as agent or salesman of the Trust in any such
jurisdictions);
(3) of preparing, setting in type, printing and mailing any notice, proxy
statement, report, Prospectus, SAI or other communication to
shareholders in their capacity as such;
(4) of preparing, setting in type, printing and mailing Prospectuses
annually, and any supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares of the Funds
resulting from the acceptance by you of orders to purchase Shares of
the Funds placed with you by investors, including the expenses of
printing and mailing confirmations of such purchase orders and the
expenses of printing and mailing a Prospectus included with the
confirmation of such orders and, if requested by the purchaser, an SAI;
-14-
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to you in this Section 8;
(8) of wiring funds in payment of Share purchases or in satisfaction of
redemption or repurchase requests, unless such expenses are paid for by
the investor or shareholder who initiates the transaction;
(9) of the cost of printing and postage of business reply envelopes sent to
shareholders;
(10) of one of more CRT terminals connected with the computer facilities of
the Transfer Agent other than the portion allocated to you in this
Section 8;
(11) permitted to be paid or assumed by any Fund or Funds or any Class
thereof pursuant to (a) a Rule 12b-1 Plan adopted by such Fund or Funds
in conformity with the requirements of Rule 12b-1 under the Investment
Company Act ("Rule 12b-1") or any successor rule, notwithstanding any
----------
other provision to the contrary herein or (b) any other plan adopted by
a Fund providing for account administration or shareholder liaison
services (a "Service Plan");
(12) of the expense of setting in type, printing and postage of any periodic
newsletter to shareholders other than the portion allocated to you in
this Section 8; and
(13) of the salaries and overhead of persons employed by you as shareholder
representatives other than the portion allocated to you in this Section
8.
(b) Except as provided in any Rule 12b-1 Plan or Service Plan, you shall pay or
arrange for the payment of all fees and expenses:
(1) of printing and distributing any Prospectuses or reports prepared for
your use in connection with the offering of Shares of the Funds to the
public;
(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of Shares of the
Funds to the public;
(3) of advertising in connection with the offering of Shares of the Funds
to the public;
(4) incurred in connection with your registration as a broker or dealer or
the registration or qualification of
-15-
your officers, partners, directors, agents or representatives under
Federal and state laws;
(5) of that portion of WATS (or equivalent) telephone lines allocated to
you on the basis of use by investors (but not shareholders) who request
information or Prospectuses;
(6) of that portion of the expense of setting in type, printing and postage
of any periodic newsletter to shareholders attributable to promotional
material included in such newsletter at your request concerning
investment companies other than the Trust or concerning the Trust to
the extent you are required to assume the expense thereof pursuant to
this Section 8, except such material which is limited to information,
such as listings of other investment companies and their investment
objectives, given in connection with the exchange privilege as from
time to time described in the Prospectuses;
(7) of that portion of the salaries and overhead of persons employed by you
as shareholder representatives attributable to the time spent by such
persons in responding to requests from investors, but not shareholders,
for information about the Trust;
(8) of any activity which is primarily intended to result in the sale of
Shares of any Class of a Fund, unless a 12b-1 Plan shall be in effect
which provides that shares of such Classes shall bear some or all of
such expenses, in which case such Class shall bear such expenses in
accordance with such Plan; and
(9) of that portion of one or more CRT terminals connected with the
computer facilities of the Transfer Agent attributable to your use of
such terminal(s) to gain access to such of the Transfer Agent's records
as also serve as your records.
Expenses which are to be allocated between you and the Trust shall be
allocated pursuant to reasonable procedures or formulae mutually agreed upon
from time to time, which procedures or formulae shall to the extent
practicable reflect studies of relevant empirical data.
9. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Trust will indemnify you and hold you harmless against any losses,
claims, damages or liabilities, to which you may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or
-16-
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, Registration Statement, Prospectus, or SAI or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein not misleading, and will reimburse you for any legal or
other expenses reasonably incurred by you in connection with investigating
or defending any such action or claim; provided, however, that the Trust
-------- -------
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Registration Statement, any Preliminary Prospectus, or any Prospectus
or SAI in reliance upon and in conformity with written information furnished
to the Trust by you expressly for use therein.
(b) You will indemnify and hold harmless the Trust against any losses, claims,
damages or liabilities to which the Trust may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof), arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, any Preliminary Prospectus, or any Prospectus
or SAI, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Registration
Statement, any Preliminary Prospectus, or any Prospectus or SAI in reliance
upon and in conformity with written information furnished to the Trust by
you expressly for use therein; and will reimburse the Trust for any legal or
other expenses reasonably incurred by the Trust in connection with
investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
-17-
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Trust on the one hand and you on the other
from the offering of the Shares of the Fund or Funds in respect of which
such losses, claims, damages or liabilities (or actions in respect thereof)
arose. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Trust on the one
hand and you on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relative equitable considerations.
The relative benefits received by the Trust on the one hand and you on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares of the relevant Funds (before deducting
expenses) received by the Trust bear to the total compensation received by
you in selling Shares of such Funds under this Agreement, including any
sales charge as set forth in the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Trust on the one hand or you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Trust and you agree that it would
-18-
not be just and equitable if the contributions pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this subsection
(d), you shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares of the relevant Funds
sold by you and distributed to the public were offered to the public exceeds
the amount of any damages which you have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Trust under this Section 9 shall be in addition to
any liability which the Trust may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls you within
the meaning of the Securities Act; and your obligations under this Section 9
shall be in addition to any liability which you may otherwise have and shall
extend, upon the same terms and conditions, to each trustee or officer of
the Trust (including any person who, with his consent, is named in the
relevant Registration Statement as about to become a trustee of the Trust)
and to each person, if any, who controls the Trust within the meaning of the
Securities Act.
10. TERM.
----
(a) This Agreement shall commence on the date first set forth above and continue
in effect until _______, 1999 and then for successive annual periods after
_______, 1999, provided such continuance after the initial term is
specifically approved at least annually by (i) the Trustees of the Trust or
(ii) a vote of a majority (as defined in the Investment Company Act) of the
Fund's outstanding voting securities, provided that in either event the
continuance is also approved by a vote of a majority of the Trustees of the
Trust who are not interested persons (as defined in the Investment Company
Act) of the Trust or any party to this Agreement, by vote cast in person at
a meeting called for the purpose of voting on such approval. The Trust
authorizes you, if and when you so determine, to assign to a third party any
payments with
-19-
respect to one or more Classes of Shares that you are entitled to receive
for your services hereunder, including any payments of initial or deferred
sales charges or payments in accordance with a Rule 12b-1 or Service Plan so
long as such Plan is in effect, free and clear of any offset, defense or
counterclaim the Trust may have against you and except to the extent that
any change or modification after the date hereof of (x) the provisions of
the Investment Company Act, the Rules and Regulations thereunder or other
applicable law or (y) any interpretation of the Investment Company Act, the
Rules and Regulations thereunder or other applicable law shall restrict your
right to make such transfer free and clear of any offset, defense or
counterclaim.
(b) The sale of Shares of the Funds in accordance with the terms of this
Agreement shall be subject to termination or suspension in the absolute
discretion of the Trust, by notice given to you as set forth in Section 12
hereof.
(c) This Agreement will terminate automatically in the event of its assignment
(as defined in the Investment Company Act).
11. REPRESENTATION AND INDEMNITIES TO SURVIVE. The respective agreements,
-----------------------------------------
representations, warranties, indemnities and other statements of the Trust
and you set forth in or made pursuant to this Agreement will, to the extent
permitted by applicable law, remain in full force and effect, regardless of
any investigation made by or on behalf of you, any Authorized Dealer or the
Trust, or any of the controlling persons referred to in Section 9 hereof,
and will survive the offer of the Shares of the Funds. The provisions of
Section 8, 9 and 11 hereof and your right to receive any contingent deferred
sale charges shall, to the extent permitted by applicable law, survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective only
-------
on receipt, and, if sent to you, mailed, delivered or telegraphed and
confirmed to you at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxxx, Xxx Xxxx
00000, Attention: Registration Department (Distributors - Xxxxxxx Sachs
Funds) or, if sent to the Trust, mailed, delivered or telegraphed and
confirmed to it at Xxxxxxx Xxxxx Trust, 0000 Xxxxx Xxxxx, Xxxxxxx, Xxx.
00000, Attention: Secretary.
13. AFFILIATES. The Trust recognizes that your partners, officers and employees
----------
may from time to time serve as directors, trustees, officers and employees
of corporations and business entities (including other investment
companies), and that you or your affiliates may enter into distribution or
other agreements with other corporations and business entities.
-20-
14. SUCCESSORS. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and, to the extent
set forth herein, each of the officers, trustees and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. MISCELLANEOUS. The captions in this Agreement are included for convenience
-------------
of reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect. This Agreement may
be executed simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
The name "Xxxxxxx Sachs Variable Insurance Trust" is the designation of the
Trustees for the time being under an Agreement and Declaration of Trust
dated September 15, 1997, as amended from time to time, and all persons
dealing with the Trust must look solely to the property of the Trust for the
enforcement of any claims against the Trust as neither the Trustees,
officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Trust. No series of the Trust
shall be liable for any claims against any other series of the Trust.
-21-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Trust, and, to the extent set forth herein, shall be for the benefit of each
Authorized Dealer.
Very truly yours,
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
By:___________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
---------------------------------------
(Xxxxxxx, Sachs & Co.)
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EXHIBIT A
---------
SERIES ("FUNDS") OF XXXXXXX XXXXX VARIABLE INSURANCE TRUST, A DELAWARE BUSINESS
-------------------------------------------------------------------------------
TRUST (THE "TRUST")
-------------------
XXXXXXX SACHS FIXED INCOME FUNDS:
--------------------------------
Xxxxxxx Xxxxx Global Income Fund
Xxxxxxx Sachs High Yield Fund
XXXXXXX XXXXX EQUITY FUNDS:
--------------------------
Xxxxxxx Sachs CORE Large Cap Growth Fund
Xxxxxxx Xxxxx CORE U.S. Equity Fund
Xxxxxxx Sachs CORE Small Cap Equity Fund
Xxxxxxx Xxxxx Growth and Income Fund
Xxxxxxx Sachs Capital Growth Fund
Xxxxxxx Xxxxx International Equity Fund
Xxxxxxx Sachs Mid Cap Equity Fund
-23-
