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EXHIBIT (e)(1)
DISTRIBUTION AGREEMENT
This Agreement entered into as of this ____ day of ________, 2000, by
and between Financial Investors Variable Insurance Trust, a Delaware business
trust having its principal place of business at 000 00xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000 (the "Trust") and ALPS Mutual Funds Services, Inc., a
Colorado corporation having its principal place of business at 000 00xx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the "Distributor").
WHEREAS, the Trust wishes to employ the services of the Distributor in
connection with the promotion and distribution of the Trust's shares of
beneficial interest of the First Horizon Capital Appreciation Portfolio, the
First Horizon Growth & Income Portfolio, and any other Portfolios offered by the
Trust as listed on Schedule A, attached hereto (the "Portfolios");
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
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
registration statement and prospectuses then in effect with respect to the
Portfolios under the Securities Act of 1933, as amended, and will transmit
promptly any orders received by the Distributor for the purchase or redemption
of Shares either directly to the Trust's transfer agent for the Portfolio
involved or to any qualified broker/dealer for transmittal to said agent.
1.2(a) In consideration of these rights granted to the Distributor, the
Distributor agrees to use its best efforts, consistent with its other business,
to solicit orders for the sale of Shares. This shall not prevent the Distributor
from entering into like arrangements (including arrangements involving the
payment of underwriting commissions) with other issuers. The Distributor, at its
expense, shall finance appropriate activities which it deems reasonable 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. In addition, the
Distributor will provide one or more persons, during normal business hours, to
respond to telephone questions with respect to the Portfolios.
1.2(b) All shares of the Portfolios offered for sale by the Distributor
shall be offered for sale to the public at a price per share (the "offering
price") equal to their net asset value (determined in the manner set forth in
the Trust's Declaration of Trust and then current Prospectuses and/or Statements
of Additional Information), plus a sales charge (if any) described in the
Trust's current Prospectuses and/or Statements of Additional Information. The
Trust shall in all cases receive the net asset value per share on all shares. If
a sales charge is in effect, the Distributor shall have the right, subject to
such rules or regulations of the Securities and Exchange Commission as may then
be in effect pursuant to Section 22 of the Investment Company Act of 1940, as
amended, (the "1940 Act") to pay a portion of the sales charge to dealers who
have sold shares of the Trust. If a fee in connection with shareholder
redemptions is
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in effect, the Trust shall collect the fee on behalf of the Distributor and,
unless otherwise agreed upon by the Trust and the Distributor, the Distributor
shall be entitled to receive all of such fees. The offering price, if not an
exact multiple of one cent, shall be adjusted to the nearest cent.
1.2(c) This Agreement shall apply to unissued shares of the Trust,
shares of the Trust held in its treasury in the event that in the discretion of
the Trust, treasury shares shall be sold, and shares of the Trust repurchased
for resale.
1.3 The Distributor shall act as distributor of the shares in
compliance 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, by the Securities and Exchange Commission or
any securities association registered under the Securities and Exchange Act of
1934, as amended. THE DISTRIBUTOR SHALL NOT MAKE OFFERS OF SALE OF SHARES IN ANY
STATE UNLESS THE DISTRIBUTOR HAS BEEN NOTIFIED BY THE TRUST THAT SUCH SHARES
HAVE BEEN REGISTERED UNDER THE SECURITIES LAWS OF SUCH STATE, OR THAT THERE IS
AN AVAILABLE EXEMPTION FROM REGISTRATION.
1.4 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by circumstances of any kind, the Trust's
officers may decline to accept any orders for, or make any sales of, any shares
until such time as they deem it advisable to accept such orders and to make such
sales and the Trust shall advise you promptly of such determination.
1.5 Except as otherwise provided for in the Administrative Agreement
dated as of ______________, 2000, by and between the Trust and the Distributor
(the "Administration Agreement"), the Trust agrees to pay all costs and expenses
in connection with the registration of shares under the Securities Act of 1933,
as amended, and all expenses in connection with maintaining facilities for the
issue and transfer of shares and for supplying information, prices and other
data to be furnished by the Trust hereunder.
1.6 The Trust agrees to execute any and all documents and to furnish
any and all information and otherwise to take all actions which may be
reasonably necessary in the discretion of the Trust's officers in connection
with the qualification of shares for sale in such states as the Distributor may
designate to the Trust and the Trust may approve, and the Trust agrees to pay
all expenses which may be incurred in connection with such qualification. The
Distributor shall pay all expenses connected with its own qualification as a
broker under State or Federal laws and, except as otherwise specifically
provided in this agreement, all other expenses incurred by the Distributor in
connection with the sale of shares as contemplated in this agreement.
1.7 The Trust shall furnish the Distributor from time to time, for use
in connection with the sale of shares, such information with respect to the
Trust and the shares as the Distributor may reasonably request, and the Trust
warrants that the statements contained in any such information, when so signed
by the Trust's officers, shall be true and correct. Subject to the provisions of
the Administration Agreement the Trust also shall furnish the Distributor upon
request with: (a) annual audited reports of the Trust's books and accounts with
respect to each of the Portfolios, made by independent public accountants
regularly retained by the Trust, (b) semi-annual reports with respect to each of
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the Portfolios prepared by the Trust, and (c) from time to time such additional
information regarding the Trust's financial condition as the Distributor may
reasonably request.
1.8 The Trust represents to the Distributor that all registration
statements and prospectuses filed by the Trust with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
shares have been prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder. As
used in this agreement the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus (together with the related
statement of additional information) filed with the Securities and Exchange
Commission with respect to any of the shares and any amendments and supplements
thereto which at any time shall have been filed with said Commission. 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 said Act and the
rules and regulations of said Commission; that all statements of fact contained
in any such registration statement and prospectus will be materially true and
correct when such registration statement becomes effective; and that neither any
registration statement nor any prospectus when such registration statement
becomes effective will include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Trust may but shall not be obligated to
propose from time to time such amendment or amendments to any registration
statement and such supplement or supplements to any prospectus as, in the light
of future developments, may, in the opinion of the Trust's counsel, be necessary
or advisable. If the Trust shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Trust of a
written request from 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 into this agreement shall in any way limit the Trust's right
to file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.9 The Trust authorizes the Distributor to use any prospectus in the
form furnished to the Distributor from time to time, in connection with the sale
of shares. 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 Securities Act of 1933, as amended,
(hereinafter referred to collectively as "indemnified party") 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 in connection therewith) which the Distributor,
its officers and directors, or any such controlling person, may incur under the
Securities Act of 1933, as amended, or under common law, or otherwise, arising
out of or based upon any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement or any prospectus or
arising out of or based upon any omission, or alleged omission, to state a
material fact required to be stated in either any registration statement or any
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prospectus or necessary to make the statements in either thereof not misleading;
provided, however, that the Trust's agreement to indemnify 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 or based on
any omission, or alleged omission, made in any registration statement or
prospectus in reliance upon and in conformity with information furnished to the
Trust or its counsel by the Distributor and used in the preparation thereof; and
provided further 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 performance of its duties, or by reason of its 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 and directors, or
any such controlling person, such notification to be given by letter or by
telegram addressed to the Trust at its principal office within ten days after
the summons or other first legal process shall have been served. The failure to
so notify the Trust of any such action shall not relieve the Trust from any
liability which the Trust may have to the person against whom such action is
brought by reason of any such untrue, or alleged untrue, statement or omission,
or alleged omission, otherwise than on account of the Trust's indemnity
agreement contained in this paragraph 1.9. 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. In the event the Trust
elects to assume the defense of any such suit and retain counsel of good
standing chosen by the Trust and approved by the Distributor, which approval
shall not be unreasonably withheld, the defendant or defendants in such suit
shall bear the fees and expenses of any additional counsel retained by the
defense of any such suit, or in case the Distributor does not reasonably 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 1.9 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, and their respective estates, and to the benefit of any 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 trustees in connection with the issue and sale
of any of the shares.
1.10 The Distributor agrees to indemnify, defend and hold the Trust,
its several officers and trustees, and any person who controls the Trust within
the meaning of Section 15 of the Securities Act of 1933, as amended, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands,
liabilities, and any counsel fees incurred in connection therewith) which the
Trust, its officers or trustees, or any such controlling person, may incur under
the Securities Act of 1933, as amended, or under common law or otherwise, but
only to the extent that such a liability or expense incurred by the Trust, its
officers or trustees, or such controlling person resulting from such claims or
demands, shall arise out of or be based upon any omission, or alleged omission,
to state a material fact in connection with such information furnished by the
Distributor to the
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Trust, or necessary to make such information not misleading. The Distributor's
agreement to indemnify the Trust, its officers and trustees, or any such
controlling person, such notification to be given by letter or telegram
addressed to the Distributor at its principal office within ten days 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, and in any
other event the Trust, its officers or trustees or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of such action. The failure so to notify the Distributor of any such action
shall not relieve the Distributor from any liability which the Distributor may
have to the Trust, its officers or trustees, or to such controlling person by
reason of any such untrue, or alleged untrue, statement or your omission, or
alleged omission, otherwise than on account of your indemnity agreement
contained in this paragraph 1.10.
1.11 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 such shares hereunder shall be accepted by the Trust if and so long as
the effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities and Exchange Commission; provided, however, that nothing contained in
this paragraph 1.11 shall in any way restrict or have an application to or
bearing upon the Trust's obligation to repurchase shares from any shareholder in
accordance with the provisions of the prospectuses or Declaration of Trust.
1.12 The Distributor and the Trust each agree to advise the other
promptly in writing:
(a) of any request by the Securities and Exchange Commission
for amendments to the registration statement or prospectuses
then in effect;
(b) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the
effectiveness of the registration statement or prospectuses
then in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event which makes untrue any
statement of a material fact made in the registration
statement or prospectuses in order to make the statements
therein not misleading; and
(d) of all the actions of the Securities and Exchange
Commission with respect to any registration statement or
prospectus which may from time to time be filed with the
Securities and Exchange Commission.
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2. Term
2.1 This agreement shall become effective as of the date hereof and,
unless sooner terminated, shall continue until ______________, 2002, and
thereafter shall continue automatically for successive annual periods, provided
such continuance is specifically approved at least annually by (i) the Trust's
Board of Trustees or (ii) the vote of a majority (as defined in the Investment
Company Act of 1940) of the Portfolios' outstanding shares, provided that in
either event its continuance also is approved by a majority of the Trust's
trustees who are not "interested persons" (as defined in said Act) of any party
to this agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval. Notwithstanding anything to the contrary in this
Agreement, you may not terminate this Agreement prior to the later of: (i) the
expiration of the initial or any renewal term of the Administration Agreement;
or (ii) the effectiveness of any termination notice pursuant to the
Administration Agreement.
3. Miscellaneous
3.1 Other Work. The Trust recognizes that from time to time the
Distributor's directors, officers and employees may serve as directors, officers
and employees of other corporations or business trusts (including other
investment companies) and that such other corporations and trust may include the
name ALPS as part of their name, and that the Distributor or its affiliates may
enter into investment advisory or other agreements with such other corporations
and trusts.
3.2 Limitation of Liability of the Trustees and Shareholders. The names
"Financial Investors Variable Insurance Trust" and "Trustees of Financial
Investors Variable Insurance Trust" refer respectively to the Trust created and
the Trustees, as trustees but not individually or personally, acting from time
to time under a Declaration of Trust dated July 26, 2000, which is hereby
referred to and a copy of which is on file at the office of the State Secretary
of State of Delaware and the principal office of the Trust. The obligations of
"Financial Investors Variable Insurance Trust" entered into in the name of or on
behalf thereof by any of its trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
trustees, shareholders, or representatives of the Trust personally, but bind
only the Trust property belonging to such class for the enforcement of any
claims against the Trust.
3.3 Amendments. No substantive amendment to this Agreement shall be
effective as to the Trust until approved by vote of a majority of the
outstanding voting securities of the Trust.
3.4 Modification. No provision of this agreement may be modified,
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 determination is sought.
3.5 Governing Law. This agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
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3.6 Assignment. This agreement shall not be assigned by a party without
the prior written consent of the other party.
3.7 Headings. The titles and headings herein have been inserted for
convenience only and are not to be considered when interpreting the provisions
of this Agreement.
3.8 Waiver. The waiver by either party of a breach of any of the
covenants, provisions, or conditions herein contained shall not operate or be
construed as a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of the
date first above written.
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
By:
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ALPS Mutual Funds Services
By:
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FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
SCHEDULE A
First Horizon Capital Appreciation Portfolio
First Horizon Growth & Income Portfolio
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