Exhibit 99.23(e)
DISTRIBUTION AGREEMENT
Agreement made this 1st day of May 1994, between Lord Xxxxxx Series Fund,
Inc., a diversified open-end management investment company incorporated under
the laws of Maryland (the "Fund'), and Lord, Xxxxxx & Co., a New York
partnership (the "Distributor"), each with offices at the General Motors
Building, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
WHEREAS, the Fund currently offers shares of its common stock ("Shares") in
one Portfolio, designated as the Growth and Income Portfolio (the "Current
Portfolio"), and the Fund may offer Shares of one or more additional Portfolios
(each, an "Additional Portfolio", and, together with the Current Portfolio, the
"Portfolios") in the future; and
WHEREAS, the Fund's Shares are and may be used as the funding vehicle for
certain variable annuity contracts and variable life insurance policies
(collectively referred to herein as "Variable Contracts") offered by life
insurance companies (each, a "Life Company", and, collectively, the "Life
Companies") through separate accounts of such Life Companies; and
WHEREAS, from time to time the Distributor may enter into Sales Agreements
with Life Companies that have or will establish one or more separate accounts to
offer Variable Contracts, pursuant to which the Fund's Shares will serve as the
underlying funding vehicle for such Variable Contracts; and
WHEREAS, the Fund has adopted a Distribution Plan (the "Plan") pursuant to
Section 12(b) of the Investment Company Act of 1940, as amended (the "1940
Act"), and Rule 12b-1 thereunder, pursuant to which the Fund may pay for certain
Distribution Expenses (as defined in the Plan) incurred or paid by Life
Companies;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. (a) The Fund proposes to issue and sell Shares of the Portfolios to
separate accounts of Life Companies to the extent permitted by applicable law.
The Fund hereby appoints the Distributor as its exclusive selling agent to sell
the Shares, and the Distributor hereby accepts such appointment. The Shares will
be distributed under such terms as are set by the Fund and will be sold to
separate accounts of such Life Companies as may from time to time be approved by
the Board of Directors.
(b) In the event that the Fund proposes to sell Shares of one or
more Additional Portfolios, it shall notify the Distributor in writing and the
Fund and the Distributor shall enter into an Addendum to this Agreement for the
Additional Portfolios and the Additional Portfolios shall be subject to this
Agreement.
2. The Distributor agrees that (i) all Shares sold by the Distributor
shall be sold at the net asset value thereof determined as provided in the
Fund's Articles of Incorporation, as the same may be amended from time to time
and (ii) the Fund shall receive 100% of such net asset value. All orders for
Shares sold to Life Companies by the Distributor shall be transmitted to the
Fund for acceptance at its office in New York.
3. All Fund sales literature and advertisements used by the Distributor
in connection with sales of Shares shall be filed with the appropriate
authorities, including the National Association of Securities Dealers, Inc., the
states, jurisdictions, and or the Securities and Exchange Commission as may be
required from time to time. The Fund authorizes the Distributor, in connection
with the sale or arranging for the sale of Shares, to provide only such
information and to make only such statements or representations which are not
materially misleading or which are contained in the Fund's then-current
Prospectus or statement of additional information or shareholder reports or in
such financial and other statements which are furnished to the Distributor by
the Fund. The Fund shall not be responsible in any way for any information
provided or statements or representations made by the Distributor or its
representatives or
agents other than the information, statements and representations furnished by
the Fund and described in the preceding sentence. The Distributor shall review
all materials submitted to it by the Life Companies that describe the Fund, the
Shares or the Distributor. The Distributor shall not be responsible for any
information provided or statements or representations made by the Life
Companies, representatives or agents of the Life Companies or any other persons
or entities other than the Distributor's representatives or agents.
4. (a) The Fund will pay or cause to be paid the fees, costs, expenses
or other charges of any of its Portfolios as set forth in the Management
Agreement between the Fund and Lord, Xxxxxx & Co., as the same may be amended
from tune to time.
(b) The Distributor shall pay all of the costs and expenses incurred
by it in connection with the offer and sale of the Shares of any Portfolio,
provided, however, that Distribution Expenses payable by the Fund as provided in
paragraph (c) hereof shall not be deemed to be costs and expenses incurred by
the Distributor. If the Distributor pays for other expenses of the Fund or
furnishes the Fund with services, the cost of which is to be borne by the Fund
under this Agreement, the Distributor shall not be deemed to have waived its
rights under this Agreement to have the Fund pay for such expenses or provide
such services in the future.
(c) The Fund may pay amounts of Distribution Expenses to the
Distributor for remittance to a Life Company that has entered into a Sales
Agreement with the Distributor, with respect to the Current Portfolio and with
respect to each Additional Portfolio that may adopt the Plan, as the same may be
amended from time to time. Any such Distribution Expenses shall be payable in
accordance with, and subject to compliance by the Distributor and the Fund with
the provisions of, the Plan. The Distributor shall remit as promptly as
reasonably practicable all payments received from the Fund pursuant to the Plan
to the respective Life Companies having incurred or paid such Distribution
Expenses.
5. Neither this Agreement nor any other transaction between the parties
hereto pursuant to this Agreement shall be invalidated or in any way affected by
the fact that any and all of the directors, officers, stockholders, or other
representatives of the Fund are or may be interested in the Distributor, or any
successor or assignee thereof, or that any or all of the directors, officers,
partners, or other representatives of the Distributor are or may be interested
in the Fund, except as otherwise may be provided in the Investment Company Act
of 1940.
6. The Distributor agrees that it will not sell for its own account to
the Fund any stocks, bonds or other securities of any kind or character, except
that if it shall own any of the Fund's Shares or other securities, it may sell
them to the Fund on the same terms as any other shareholder might do.
7. The Distributor agrees that it shall observe and be bound by all of
the terms of the Articles of Incorporation of the Fund, including any amendments
thereto, which shall in any way limit or restrict or prohibit or otherwise
regulate any action of the Distributor.
8. (a) This Agreement shall continue in force until January 30, 1995,
and it may be continued annually thereafter by specific approval of the Board of
Directors of the Fund or by vote of a majority of the outstanding voting
securities of the Fund; any such renewal shall be approved by the vote of a
majority of the directors who are not parties to this Agreement and are not
"interested persons" of the Fund and have no direct or indirect financial
interest in the operation of this Agreement (the "Independent Directors"), cast
in person at a meeting called for the purpose of voting on such renewal.
(b) This Agreement, with respect to any Portfolio, may be terminated
at any time without payment of any penalty, by vote of a majority of the
Independent Directors or by vote of a majority of the outstanding voting
securities of that Portfolio on not more than 60 days' written notice to the
Distributor.
(c) This Agreement shall automatically terminate in the event of its
assignment.
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(d) The terms "interested person", "assignment" and "vote of a
majority of the outstanding voting securities" as used herein shall have the
meanings given to them in the 1940 Act.
9. Other than to abide by the provisions hereof and render the services
called for hereunder in good faith, the Distributor assumes no responsibility
under this Agreement and having so acted, the Distributor shall not be held
liable or held accountable for any mistake of law or fact, or for any loss or
damage arising or resulting therefrom suffered by the Fund or any of the
stockholders, creditors, directors, or officers of the Fund; provided, however,
that nothing herein shall be deemed to protect the Distributor against any
liability to the Fund or its shareholders by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties hereunder, or by
reason of the reckless disregard of its obligations and duties hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed by their duly authorized officers on the day and year first above
written.
LORD XXXXXX SERIES FUND, INC.
By: /s/ XXXXXX X. XXXXX
-------------------
Chairman
Attest: /s/ XXXXXXX X. XXXXXX
---------------------
Secretary
LORD, XXXXXX & CO
By: /s/ XXXXXX X. XXXXXX
--------------------
Partner
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ADDENDUM TO
DISTRIBUTION AGREEMENT
AGREEMENT made this 31st day of October, 1996 by and between LORD
XXXXXX SERIES FUND, INC. a Maryland Corporation (hereinafter called the "Fund"),
and LORD XXXXXX DISTRIBUTOR LLC, a New York limited liability company
(hereinafter called the "Distributor") to serve as an addendum (the "Addendum")
to the Distribution Agreement, dated May 1, 1994, between the Fund and the
Distributor (the "Distribution Agreement").
WHEREAS, the Fund and the Distributor entered into the Distribution
Agreement primarily to cover shares of the Fund offered to life insurance
companies as the funding vehicle for certain variable annuity contracts and
variable life insurance policies (collectively referred to "Variable
Contracts"); and
WHEREAS, the Board of Directors has subsequently been authorized by
Fund shareholders to allocate classes of the Fund's shares to series of the
Fund, as described in the Fund's proxy material for a special meeting of
shareholders held on December 21, 1994; and
WHEREAS, the Fund desires to amend the Distribution Agreement to
authorize the Distributor to find purchasers for its securities (which may be
issued in various Series and in various classes of such Series) in a manner
similar to the Distributor's current arrangements (not involving Variable
Contracts) with other funds in the Lord Xxxxxx family of funds.
NOW, THEREFORE, in consideration of the mutual covenants and of other
good
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and valuable consideration, receipt of which is hereby acknowledged, it is
agreed as follows:
1. The Fund hereby appoints the Distributor its exclusive selling
agent for the sale of its shares of beneficial interest, of all Series and all
classes thereof, and all other securities now or hereafter created or issued by
the Fund (except (i) notes and other evidences of indebtedness issued for
borrowed money and (ii) securities of the Fund covered by the Distribution
Agreement with respect to Variable Contracts), pursuant to paragraph 2 of this
Addendum, and the Fund agrees to issue its shares of beneficial interest or
other securities, subject to the provisions of its Articles of Incorporation, to
purchasers thereof and against payment of the consideration to be received by
the Fund therefor. The Distributor may appoint one or more investment
professionals, such as independent broker-dealers and the Distributor or any
such broker-dealer may transmit orders to the Fund for acceptance at its office
in New York. Such shares shall be registered in such name or names and amounts
as the Distributor or any such broker-dealer may request from time to time, and
all shares when so paid for and issued shall be fully paid and non-assessable.
2. The Distributor will act as exclusive selling agent for the Fund
in selling shares of beneficial interest of the Fund.
The Distributor agrees to sell exclusively through investment
professionals, such as independent broker-dealers and agrees to use its best
efforts to find purchasers for shares of beneficial interest of the Fund to be
offered; provided however, that the services of the Distributor under this
Addendum are not deemed to be exclusive, and nothing in this Addendum shall
prevent Distributor, or any officer, partner or employee thereof, from providing
similar services to other investment companies and other clients or to engage in
other activities.
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The sales charge or premium, if any, relating to each Series and class
of shares of beneficial interest of the Fund shall be determined by the Board of
Directors of the Fund, but in no event shall the sales charge (front-end and/or
asset-based) and service fees exceed the maximum rate permitted under Federal
and state regulations and the rules of National Association of Securities
Dealers, Inc., and the amount to be retained by the Fund on any sale of its
shares shall in each case be the net asset value thereof (determined as provided
in the Articles of Incorporation). If a front-end sales charge is imposed from
the premium, the Fund agrees to pay the Distributor a sales commission. If
appropriate, the Distributor may allow concessions from such sales commissions.
In such event the amount of the payment hereunder by the Fund to the Distributor
shall be the difference between the sales commission and any concessions which
have been allowed in accordance herewith. If a front-end sales charge is
imposed, the sales commission payable to the Distributor shall not exceed the
front-end sales charge. If the Fund adopts a Distribution Plan under Rule 12b-1
of the Investment Company Act of 1940, the Fund and the Distributor may arrange
for payment of a distribution fee to investment professionals, such as
independent broker-dealers and/or payment to the Distributor for its
distribution expenses, in whole or in part.
Recognizing the need for providing an incentive to sell and providing
necessary and continuing informational and investment services to shareholders
of the Fund, the Fund or the Distributor (by agreement) may pay investment
professionals, such as independent broker dealers periodic servicing and sales
distribution fees based on percentages of average annual net asset value of
shareholder accounts.
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3. Notwithstanding anything herein to the contrary, sales and
distributions of shares of beneficial interest of the Fund's beneficial shares
may be made upon the following special terms:
(a) Capital gains distributions and income dividends on shares of the
Fund may be reinvested by shareholders at net asset value without
any sales commission.
(b) Shares may be issued by the Fund at net asset value without any
sales commission in connection with any permitted offers of
exchange between investment companies having the same
Distributor.
(c) Shares may be issued by the Fund at net asset value without a
sales commission or at a reduced sales commission or back-end
sales charge and with, or without, a service fee as may from time
to time be permitted by rules or orders of the Securities and
Exchange Commission under the Investment Company Act of 1940 and
the rules of National Association of Securities Dealers, Inc.
4. The investment professionals, such as independent broker-dealers
who sell the Fund's shares may also render other services to the Fund, such as
executing purchases and sales of portfolio securities, providing statistical
information, transfer and servicing agent services, and similar services. The
receipt of compensation for such other services shall in no way reduce the
amount of the sales commissions payable hereunder by the Fund to the Distributor
or the amount of the commissions, concessions or fees allowed.
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5. The Distributor agrees to act as agent of the Fund in connection
with the repurchase of shares of beneficial interest of the Fund, or in
connection with permitted exchanges of shares between investment companies
having the same Distributor, and the Fund agrees to advise the Distributor of
the net asset value of its shares as frequently as may be mutually agreed, and
to accept shares duly tendered to the Distributor. The net asset value shall be
determined as provided in the Articles of Incorporation of the Fund.
6. The Fund will pay all fees, costs, expenses and charges in
connection with the issuance, federal registration, transfer, redemption and
repurchase of its shares, including without limitation, all fees, costs,
expenses and charges of transfer agents and registrars, all taxes and other
Governmental charges, the costs of qualifying or continuing the qualifications
of the Fund as broker-dealer, if required, and of registering the Fund's shares
under the state blue sky laws, or similar laws of any jurisdiction (domestic or
foreign), costs of preparation and mailing prospectuses to its shareholders, and
any other cost, expense or charge not expressly assumed by the Distributor
hereunder. The Fund will also furnish to the Distributor daily such information
as may reasonably be requested by the Distributor in order that it may know all
of the facts necessary to sell the Fund's shares.
7. The Distributor agrees to pay the cost of all sales literature
and other material which it may require or think desirable to use in connection
with sale of such shares, including the cost of reproducing the offering
prospectus furnished to it by the Fund. The Fund agrees to use its best efforts
to qualify its shares for sale under the laws of such states of the United
States and such other jurisdictions (domestic or foreign) as the Distributor may
reasonably request.
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If the Distributor pays for other expenses of the Fund or furnishes
the Fund with services, the cost of which is to be borne by the Fund under this
Addendum, the Distributor shall not be deemed to have waived its rights under
this Addendum to have the Fund pay for such expenses or provide such services in
the future.
8. The Distributor agrees to use its best efforts to find purchasers
for shares of each Series and class of such Series of the Fund issued and to
make reasonable efforts to sell the same so long as in the judgment of the
Distributor a substantial distribution can be obtained by reasonable efforts.
The Distributor is not authorized to act otherwise than in accordance with
applicable laws.
9. Neither this Addendum nor any other transaction between the
parties hereto pursuant to this Addendum shall be invalidated or in any way
affected by the fact that any or all of the directors, officers, shareholders,
or other representatives of the Fund are or may be interested in the
Distributor, or any successor or assignee thereof, or that any or all of the
directors, officers, partners, or other representatives of the Distributor are
or may be interested in the Fund, except as otherwise may be provided in the
Investment Company Act of 1940.
10. The Distributor agrees that it will not sell for its own account
to the Fund any stocks, bonds or other securities of any kind or character,
except that if it shall own any of the Fund's shares or other securities, it may
sell them to the Fund on the same terms as any other holder might do.
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11. Other than to abide by the provisions hereof and render the
services called for hereunder in good faith, the Distributor assumes no
responsibility under this Addendum and, having so acted, the Distributor shall
not be held liable or held accountable for any mistake of law or fact, or for
any loss or damage arising or resulting therefrom suffered by the Fund or any of
the shareholders, creditors, directors, or officers of the Fund; provided,
however, that nothing herein shall be deemed to protect the Distributor against
any liability to the Fund or its shareholders by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties hereunder, or by
reason of the reckless disregard of its obligations and duties hereunder.
12. The Distributor agrees that it shall observe and be bound by all
of the terms of the Articles of Incorporation of Fund, including any amendments
thereto, of the Fund which shall in any way limit or restrict or prohibit or
otherwise regulate any action of the Distributor.
13. This Addendum shall continue in force until January 30, 1997 as
part of the Distribution Agreement, and it is renewable annually as part of the
Distribution Agreement thereafter by specific approval of the directors of the
Fund or by vote of a majority of the outstanding voting securities of the Fund;
any such renewal shall be approved by the vote of a majority of the directors
who are not parties to this Addendum or interested persons of the Distributor or
of the Fund, cast in person at a meeting called for the purpose of voting on
such renewal.
This Addendum may be terminated without penalty at any time by the
Board of Directors of the Fund or by vote of a majority of the outstanding
voting securities of a Series or class the Fund on 60 days' written notice with
respect to such Series or class. This Plan shall automatically terminate in the
event of its assignment. The terms "interested persons", "assignment"
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and "vote of a majority of the outstanding voting securities" shall have the
same meaning as those terms are defined in the Investment Company Act of 1940.
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IN WITNESS WHEREOF, the Fund has caused this Addendum to be executed by its
duly authorized officers and its seal to be affixed thereto, and the Distributor
has caused this Addendum to be executed by one of its partners all on the day
and year first above written.
LORD XXXXXX SERIES FUND, INC.
By: /s/ XXXXXX X. XXX
-----------------
Chairman of the Board
Attest:
/s/ XXXXXX XXXXX
Assistant Secretary
LORD XXXXXX DISTRIBUTORS LLC
By: LORD, XXXXXX & CO
-----------------
Managing Member
By: /s/ XXXXXXX X. XXXXXX
---------------------
A Partner
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