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EXHIBIT 99.B6(a)
DISTRIBUTION AGREEMENT
VARIABLE INSURANCE PRODUCT TRUST
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
November 15, 1993
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Dear Sirs:
This will confirm the agreement between the undersigned (the
"Trust"), on behalf of each of its series now or hereafter in effect (each, a
"Fund"), and you ("Distributor") as follows:
1. As the Trust's agent, Distributor shall be the exclusive
distributor for the unsold portion of beneficial interests of the Trust's Funds
("Interests") that are registered under the Securities Act of 1933 ("1933
Act").
2. The Trust shall sell through Distributor, as the Trust's
agent, and deliver, upon the terms set forth herein, Fund Interests that
Distributor orders from the Trust and for which Distributor has received and
confirmed unconditional purchase orders. All orders from Distributor shall be
subject to acceptance and confirmation by the Trust. The Trust shall have the
right, at its election, to deliver either Interests issued upon original issue
or treasury Interests.
3. As the Trust's agent, Distributor may sell and distribute
Fund Interests in such manner not inconsistent with the provisions hereof as
Distributor may determine from time to time. In that connection 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 ("1940 Act") and of any
securities association registered under the Securities Exchange Act of 1934
("1934 Act").
4. The Trust reserves the right to sell Fund Interests to
purchasers to the extent that it or the transfer agent for Fund Interests
receives purchase applications therefor. Distributor's right to accept
purchase orders for Fund Interests or to make sales thereof shall not apply to
Fund Interests that may be offered by the Trust to holders for the reinvestment
of cash distributed to holders of the Trust or Fund Interests that may
otherwise be offered by the Trust to holders, unless Distributor is otherwise
notified by the Trust.
5. All Interests offered for sale and sold by Distributor
shall be offered for sale and sold by Distributor to or through insurance
companies offering the Funds as funding vehicles for their annuity and variable
life insurance products ("Participating Insurance Companies") upon the terms
and conditions set forth in paragraph 7(b) hereof. Purchases of Interests
shall be made for full and fractional Interests, carried to the third decimal
place.
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6. Ownership of Fund Interests sold hereunder shall be
registered in such names and denominations as are specified in writing to the
Trust or to its agent designated for the purpose. No certificates for
Interests of the Fund will be issued.
7. (a) Distributor shall from time to time employ or
associate with it such persons as it believes necessary to assist it in
carrying out its obligations under this agreement. The compensation of such
persons shall be paid by Distributor.
(b) Distributor shall enter into participation
agreements with Participating Insurance Companies of its choice for the sale of
Fund Interests at the offering price and upon the terms and conditions set
forth in the Prospectus. The initial form of participation agreement is
attached hereto as an Exhibit. Distributor may amend those agreements, or
modify the form of agreement, only upon approval of the Trust.
(c) Distributor shall pay all expenses incurred in
connection with its qualification as a dealer or broker under Federal or state
laws.
(d) Distributor shall pay all expenses incurred in
connection with: (i) printing and distributing such number of copies of the
Prospectus, statements of additional information and financial reports as the
Distributor deems necessary for use in connection with offering Fund Interests
to prospective investors, (ii) preparing, printing and distributing any other
literature and advertising deemed appropriate by Distributor for use in
connection with offering Fund Interests for sale and (iii) all other expenses
incurred in connection with the sale of Fund Interests as contemplated by this
agreement. The Treasurer of the Trust shall provide to the Board of Trustees
of the Trust and the Board of Trustees shall review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
expenditures were made.
(e) The Trust shall execute all documents and furnish
any information which may be reasonably necessary in connection with the
qualification of Fund Interests of the Trust for sale in jurisdictions
designated by Distributor.
8. The Trust shall furnish Distributor from time to time, for
use in connection with the sale of Fund Interests, such written information
with respect to the Trust as Distributor may reasonably request. In each case
such written information shall be signed by an authorized officer of the Trust.
The Trust represents and warrants that such information, when signed by one of
its officers, shall be true and correct. The Trust shall also furnish to
Distributor copies of its reports to its holders and such additional
information regarding the Trust's financial condition as Distributor may
reasonably request from time to time.
9. The Registration Statement when it becomes effective will
conform in all material respects with the 1933 Act and the rules and
regulations thereunder. The Trust represents and warrants to Distributor that
the Registration Statement will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Trust shall from
time to time file such amendment or amendments to the Registration Statement
as, in the light of future developments, shall, in the opinion of the Trust's
counsel, be necessary in order to have the Registration Statement contain all
material facts required to be stated therein or necessary to make the
statements therein not misleading. If the Trust shall not file such amendment
or amendments within 15 days after receipt by the Trust of a written request
from Distributor to do so, Distributor may, at its option, terminate this
agreement immediately. The Trust shall not file any
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amendment to the Registration Statement without giving Distributor reasonable
notice thereof in advance, provided that nothing in this agreement shall in any
way limit the Trust's right to file at any time such amendments as the Trust
may deem advisable. The Trust represents and warrants to Distributor that any
amendment to the Registration Statement will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
10. Subject to the provisions of paragraph 7, the Trust shall
prepare and furnish to Distributor from time to time such number of copies of
the most recent form of the Prospectus filed with the SEC as Distributor may
reasonably request. The Trust authorizes Distributor and Participating
Insurance Companies to use the Prospectus, in the form furnished to Distributor
from time to time, in connection with the sale of Fund Interests. The Trust
shall indemnify, defend and hold harmless Distributor, its officers and
partners and any person who controls Distributor within the meaning of the 1933
Act, from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which
Distributor, its officers or partners or any such controlling person, may incur
under the 1933 Act, the 1940 Act, the common law or otherwise, arising out of
or based upon any alleged untrue statement of a material fact contained in the
Registration Statement or arising out of or based upon any alleged omission to
state a material fact required to be stated in such Registration Statement or
necessary to make the statements in either thereof not misleading.
Notwithstanding the foregoing, this indemnity agreement, to the extent that it
might require indemnity of any person who is an officer or partner of
Distributor and who is also a trustee of the Trust, shall not inure to the
benefit of such officer or partner unless a court of competent jurisdiction
shall determine, or it shall have been determined by controlling precedent,
that such result would not be against public policy as expressed in the 1933
Act or the 1940 Act, and in no event shall anything contained herein be so
construed as to protect Distributor against any liability to the Trust or its
Holders to which Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
agreement. This indemnity agreement is expressly conditioned upon the Trust's
being notified of any action brought against Distributor, its officers or
partners or any such controlling person, which notification shall be given by
letter or by telegram addressed to the Trust at its principal office in Little
Rock, Arkansas, and sent to the Trust by the person against whom such action is
brought within 10 days after the summons or other first legal process shall
have been served. The failure to notify the Trust of any such action shall not
relieve the Trust from any liability which it may have to the person against
whom such action is brought by reason of any such alleged untrue statement or
omission otherwise than on account of the indemnity agreement contained in this
paragraph. The Trust shall be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, the
defense shall be conducted by counsel chosen by the Trust and approved by
Distributor. If the Trust elects to assume the defense of any such suit and
retain counsel approved by 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 Distributor does not approve of counsel chosen by the Trust,
the Trust will reimburse Distributor, its officers and partners or the
controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by Distributor or them. In
addition, Distributor shall have the right to employ one separate counsel to
represent it, its officers and partners and any such controlling person who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by Distributor against the Trust hereunder if in the reasonable
judgment of Distributor it is advisable because of actual or potential
differing interests between the Distributor, its officers and partners or such
controlling person and the Trust in the conduct of the defense of such action,
for Distributor, its officers and partners or such controlling person to be
represented by separate counsel, in
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which event the fees and expenses of such separate counsel shall be borne by
the Trust. This indemnity agreement and the Trust's representations and
warranties in this agreement shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of Distributor, its
officers and partners or any such controlling person and shall survive the
delivery of any Interests as provided in this agreement. This indemnity
agreement shall inure exclusively to the benefit of Distributor and its
successors, Distributor's officers and partners and their respective estates
and any such controlling persons and their successors and estates. The Trust
shall promptly notify Distributor of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any Fund
Interests.
11. Distributor agrees to indemnify, defend and hold harmless
the Trust, its officers and trustees and any person who controls the Trust
within the meaning of the 1933 Act, 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 Trust, its officers or trustees or any such
controlling person, may incur under the 1933 Act, the 1940 Act, the common law
or otherwise, but only to the extent that such liability or expense incurred by
the Trust, its officers or trustees or such controlling person resulting from
such claims or demands shall arise out of or be based upon (a) any alleged
untrue statement of a material fact contained in information furnished in
writing by Distributor to the Trust specifically for use in the Registration
Statement or shall arise out of or be based upon any alleged omission to state
a material fact in connection with such information required to be stated in
the Registration Statement or necessary to make such information not misleading
and (b) any alleged act or omission on Distributor's part as the Trust's agent
that has not been expressly authorized by the Trust in writing. This indemnity
agreement is expressly conditioned upon Distributor's being notified of any
action brought against the Trust, its officers and trustees or any such
controlling person, which notification shall be given by letter or telegram,
addressed to Distributor at its principal office in Little Rock, Arkansas, and
sent to Distributor by the person against whom such action is brought, within
10 days after the summons or other first legal process shall have been served.
The failure to notify Distributor of any such action shall not relieve
Distributor from any liability which it may have to the Trust, its officers or
trustees or such controlling person by reason of any such alleged misstatement
or omission on Distributor's part otherwise than on account of the indemnity
agreement contained in this paragraph. Distributor shall have a right to
control the defense of such action with counsel of its own choosing and
approved by the Trust if such action is based solely upon such alleged
misstatement or omission on Distributor's part, and in any other event the
Trust, its officers and trustees or such controlling person shall each have the
right to participate in the defense or preparation of the defense of any such
action at their own expense.
12. No Fund Interests shall be sold through Distributor or by
the Trust under this agreement and no orders for the purchase of Fund Interests
shall be confirmed or accepted by the Trust if and so long as the effectiveness
of the Registration Statement shall be suspended under any of the provisions of
the 1933 Act. Nothing contained in this paragraph 12 shall in any way
restrict, limit or have any application to or bearing upon the Trust's
obligation to redeem Fund Interests from any Holder in accordance with the
provisions of its Declaration of Trust. The Trust will use its best efforts at
all times to have Fund Interests effectively registered under the 0000 Xxx.
13. The Trust agrees to advise Distributor immediately:
(a) of any request by the SEC for amendments to the
Registration Statement or for additional information;
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(b) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement under the 1933
Act or the initiation of any proceedings for that purpose;
(c) of the happening of any material event that makes
untrue any statement made in the Registration Statement or that requires the
making of a change in such Registration Statement in order to make the
statements therein not misleading; and
(d) of any action of the SEC with respect to any
amendments to the Registration Statement that may from time to time be filed
with the SEC under the 1933 Act or the 0000 Xxx.
14. The Distributor warrants that:
(a) it has taken all actions necessary under its
Articles of Incorporation, By-laws and state corporate law to authorize the
execution and performance of this Agreement; and
(b) it is and shall remain duly registered as a
broker-dealer under the 1934 Act, is a member in good standing of NASD and is
duly registered under applicable state securities laws.
15. Insofar as they concern the Trust, the Trust shall comply
with all applicable laws, rules and regulations, including, without limiting
the generality of the foregoing, all rules or regulations made or adopted
pursuant to the 1933 Act, the 1940 Act or by any securities association
registered under the 1934 Act.
16. Distributor may, if it desires and at its own cost and
expense, appoint or employ agents to assist it in carrying out its obligations
under this agreement, but no such appointment or employment shall relieve
Distributor of any of its responsibilities or obligations to the Trust under
this agreement.
17. Subject to the provisions of paragraph 9, this agreement
shall continue in effect until such time as there shall remain no unsold
balance of Fund Interests registered under the 1933 Act, provided that this
agreement shall continue in effect for a period of more than one year from the
date hereof only so long as such continuance is specifically approved at least
annually in accordance with the 1940 Act and the rules thereunder. This
agreement shall terminate automatically in the event of its assignment (as
defined in the 1940 Act). This agreement may, in any event, be terminated at
any time, without the payment of any penalty, by the Trust upon 60 days'
written notice to Distributor or by Distributor at any time after the second
anniversary of the effective date of this agreement on 60 days' written notice
to the Trust.
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18. This agreement shall be governed by and construed in
accordance with the laws of the State of Arkansas.
If the foregoing correctly sets forth the agreement between the
Trust and Distributor, please so indicate by signing and returning to the Trust
the enclosed copy hereof.
Very truly yours,
VARIABLE INSURANCE PRODUCT
TRUST
By: /s/Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chief Operating Officer
ACCEPTED as of the date set forth above:
XXXXXXXX INC.
By: /s/R. Xxxx Xxxxxx
Name: R. Xxxx Xxxxxx
Title: Senior Vice President
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