EXHIBIT 6
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
November 2, 1998
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, no par value per share (the "Shares"), corresponding to
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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
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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.
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(a) The terms which follow, when used in this Agreement, shall have
the meanings indicated.
"Effective Date" shall mean the date that any Registration Statement
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or any post-effective amendment thereto becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus
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relating 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).
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"Prospectus" shall mean any prospectus relating to the Shares of a
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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 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
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N-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
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the Securities Act (as defined in Section 2 below).
"SAI" shall mean any statement of additional information relating to
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the 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
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deemed 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, 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 333-35883) on Form N-1A with respect to an indefinite number of
Shares of the Funds and is duly registered as an 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.
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(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,
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however, that the Trust makes no representations or warranties as to the
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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.
(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
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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 the
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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 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
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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 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. SALES OF THE SHARES; OTHER SERVICES AS DISTRIBUTOR.
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(a) The Trust hereby grants to you exclusive authority to distribute
the Trust shares to insurance companies ("Participating Insurance
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Companies") and their separate accounts ("Participating Accounts") to fund
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certain variable annuity contracts or variable life insurance policies (the
"Contracts") and to other persons or plans ("Participating Plans") that
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qualify to purchase shares of the Trust under Section 817(h) of the
Internal Revenue Code and the regulations thereunder without impairing the
ability of the Participating Accounts to consider the portfolio investments
of the Trust as constituting investments of such Accounts for the purpose
of satisfying the diversification requirements of Section 817(h) (all such
persons being referred to herein as "Qualified Persons"). Such
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authority shall include the right to select which Series or Classes of
Shares shall be made available to any Qualified Person. Such Shares shall
be made available to a Qualified Person (each purchasing Qualified Person
being referred to herein as a "Participating Investor") consistent with
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this Agreement, with the relevant Prospectus, and with the terms and
conditions of any exemptive order obtained by the Trust from the SEC or SEC
rule or regulation relied upon by the Trust and, in the case of a
Participating Insurance Company or a Participating Plan owning more than
10% of the Trust's Shares, pursuant to an agreement containing provisions
consistent with the form of Participation Agreement attached hereto. You
are hereby authorized to enter into Participation Agreements with Qualified
Persons, and in connection therewith to make such changes to the form of
Participation Agreement attached hereto as you deem appropriate in the
circumstances, provided that the executed agreement is consistent with the
form of Participation Agreement attached hereto and with any other
Participation Agreements then in effect. You shall have the right to
suspend or terminate the offering of Shares to any Participating Investor
subject to any applicable conditions in the Participation Agreement with
such investor. In any event, the Trust reserves the right in its sole
discretion to refuse to accept a request for the purchase of Shares.
(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 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, however, that you will provide the Trust with and
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obtain the Trust's approval of copies of any advertising and promotional
materials approved, produced or used by you prior to their use (unless
otherwise agreed by the parties hereto). 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.
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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 as provided for in Section 3 of this Agreement. You
may also subscribe for Shares of a Fund as principal for resale to
Participating Investors, provided you qualify as a Qualified Person. 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. The Trust may
appoint Participating Insurance Companies that have entered into
Participation Agreements as an agent of the Trust for the limited purpose
or receiving purchase and redemption requests on behalf of their
Participating Account (but not with respect to any Trust shares that may be
held in the general account of such Company) for Shares of those Series or
Classes made available thereunder, based on allocations of amounts to the
Participating Account or subaccounts thereof under the Contracts, other
transactions relating to the Contracts or the Participating Account and
customary processing of the Contracts.
(b) The Trust shall redeem Shares of any Fund presented to it by
Participating Investors at the price determined in accordance with, and in
the manner set forth in, the Prospectus for such Fund and the Participation
Agreement with such investor, as applicable.
(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) It is not anticipated that any Shares will be subject to a sales
charge or a contingent deferred sales charge. In the event that any Shares
of a Class are subject to a sales charge or a contingent deferred sales
charge, you will be entitled to receive that portion of the sales charges
or contingent deferred sales charge applicable to sales of Shares of a
Class as set forth in the relevant Prospectus.
(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 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.
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(c) The Trust shall not be obligated to pay you compensation with
respect to your distribution of Shares that are not subject to a sales
charge, contingent deferred sales charge or Rule 12b-1 Plan. 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, to the extent
applicable to the Trust.
6. UNDERTAKINGS. The Trust agrees with you, for your benefit, that:
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(a) The Trust shall sell Shares of the Funds in accordance with the
terms of each Participation Agreement or otherwise so long as it has such
Shares available for sale and, in the case of sales covered by any
Participation Agreement, no suspensions or terminations thereunder are in
effect, and shall cause the transfer agent (the "Transfer Agent") to record
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on its books the ownership of such Shares registered in such names and
amounts as you have requested in writing or other means, as promptly as
practicable in accordance with the terms and conditions of any
Participation Agreements and the relevant Prospectus. The Trust will make
such filings under the Investment Company Act with, and pay such fees to,
the Commission as are necessary or required 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, however, that nothing contained in
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this Agreement shall in any way limit 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 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
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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, 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, so long as delivery of a Prospectus or SAI by you may be
required by law, the number of copies of each Prospectus and each SAI as
you may reasonably request for yourself.
(e) Consistent with the practice of mutual funds whose shares are made
available only to Qualified Persons, the Trust shall undertake to comply
with the terms and conditions of relevant exemptions from the securities
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 jurisdictions as you and the Trust may approve. To the extent that
exemptions from securities laws in any such jurisdiction are not available
to the Trust and its Shares, the Trust shall use its best efforts to comply
with the registration, notification or qualification requirements of such
laws in order for such Shares to be lawfully sold in such jurisdiction, and
will maintain any such registration, notification or 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.
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(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, 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) The Trust, if so requested, shall furnish to you a copy of the
opinion of counsel for the Trust to the effect that the Shares issued by
the Trust are 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 Section 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 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.
(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)
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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 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 Distributor, 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.
(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
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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.
(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, including
Participation Agreements, 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 exemption, registration,
notification and qualification of Shares of the Funds for sale in
the various jurisdictions in accordance with Section 6(c) of this
Agreement (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
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printing and mailing a Prospectus included with the confirmation
of such orders and, if requested by the purchaser, an SAI;
(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 extent not paid for by the Trust or
any Participating Insurance Company under a Participation
Agreement;
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(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 extent not paid for by the Trust or
any Participating Insurance Company under a Participation
Agreement;
(3) of advertising in connection with the offering of
Shares of the Funds to the extent not paid for by the Trust or
any Participating Insurance Company under a Participation
Agreement;
(4) incurred in connection with your registration as a
broker or dealer or the registration or qualification of 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.
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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 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
-15-
commencement thereof the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, 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 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
-16-
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 June 30, 1999 and then for successive annual
periods after June 30, 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 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.
-17-
(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.
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 16, 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
-18-
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.
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: /s/ Xxxxxxx X. Grip
-----------------------------------------
Name: Xxxxxxx X. Grip
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
/s/ Xxxxx X. Xxxx
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
Xxxxx X. Xxxx
Managing Director
-19-
AMENDED EXHIBIT A
-----------------
(November 13, 1998)
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 Short Duration Government Fund
XXXXXXX SACHS EQUITY FUNDS:
--------------------------
Xxxxxxx Xxxxx CORE Large Cap Growth Fund
Xxxxxxx Sachs CORE U.S. Equity Fund
Xxxxxxx Xxxxx CORE Small Cap Equity Fund
Xxxxxxx Sachs Growth and Income Fund
Xxxxxxx Xxxxx Capital Growth Fund
Xxxxxxx Sachs International Equity Fund
Xxxxxxx Xxxxx Mid Cap Equity Fund
Xxxxxxx Sachs CORE Large Cap Value Fund
Xxxxxxx Xxxxx CORE International Equity Fund
Xxxxxxx Sachs Conservative Strategy Portfolio
Xxxxxxx Xxxxx Balanced Strategy Portfolio
Xxxxxxx Sachs Growth and Income Strategy Portfolio
Xxxxxxx Xxxxx Growth Strategy Portfolio
Xxxxxxx Sachs Aggressive Growth Strategy Portfolio
-20-
