Exhibit 99(e)(1)
FIRST EAGLE SOGEN VARIABLE FUNDS, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
February 18, 2000
Xxxxxxx and X. Xxxxxxxxxxxx, Inc.
1345 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Distribution Contract
Dear Sirs:
First Eagle SoGen Variable Funds, Inc. (the "Company"), a Maryland
corporation currently consisting of the portfolios listed on Schedule A,
attached hereto, together with all other portfolios subsequently established and
made subject to this Agreement, is engaged in the business of an investment
company. Its Board of Directors has selected you to act as principal underwriter
(as such term is defined in Section 2(a)(29) of the Investment Company Act of
1940, as amended) of the shares of Capital Stock of the Company and you are
willing to act as such principal underwriter and to perform the duties and
functions of underwriter in the manner and on the conditions hereinafter set
forth. Accordingly, the Company hereby agrees with you as follows:
1 . Copies of Corporate Documents. The Company will furnish you promptly
with copies of any registration statements filed by it with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended, together with any financial
statements and exhibits included therein, and all amendments or supplements
thereto hereafter filed.
2. Registration and Sale of Additional Shares. The Company will from time
to time use its best efforts to register under the Securities Act of 1933, as
amended, such authorized shares of
Capital Stock not already so registered as you may reasonably be expected to
sell as agent on behalf of the Company. To the end that there will be available
for sale such number of shares as you may reasonably be expected to sell, the
Company, subject to the necessary approval of its shareholders, will, from time
to time as may be necessary, increase the number of authorized shares. This
agreement relates to the issue and sale of shares that are duly authorized and
registered and available for sale by the Company, including repurchased and
redeemed shares if and to the extent that they may be legally sold and if, but
only if, the Company sees fit to sell them. You and the Company will cooperate
in taking such action as may be necessary from time to time to qualify shares of
the Company for sale in New York and in any other states mutually agreeable to
you and the Company, and to maintain such qualification, provided that such
shares are duly registered under the Securities Act of 1933, as amended.
The Company represents to you that all registration statements and
prospectuses filed by the Company with the Securities and Exchange Commission
under the Securities Act of 1933 and under the Investment Company Act of 1940
with respect to the shares have been prepared in conformity with the
requirements of said Acts 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, including the statement of additional information incorporated
by reference therein, filed with the Securities and Exchange Commission and any
amendments and supplements thereto which at any time shall have been filed with
said Commission. The Company represents and warrants to you 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 Acts and the rules and regulations of said
Commission; that all statements of fact contained in any such registration
statement and prospectus will be 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 Company 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 Company's counsel, be necessary or advisable. If the Company
shall not propose such amendment or amendments and/or supplement or supplements
within fifteen days after receipt by the Company of a written request from you
to do so with respect to a material change, you may, at your option, terminate
this Agreement or decline to make offers of the Company's securities until such
amendments are made. The Company shall not file any amendment to any
registration statement or supplement to any prospectus without giving you
reasonable notice thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit the Company's right to file at any time
such amendments to any registration statement and/or supplements to any
prospectus, of whatever character, as the Company may deem advisable, such right
being in all respects absolute and unconditional.
3. Solicitation of Orders. You will use your best efforts (but only in
states in which you may lawfully do so) to obtain orders for shares of the
Capital Stock of the Company authorized for issue by the Company and registered
under the Securities Act of 1933, as amended, from life insurance companies that
have entered into a participation agreement with you and the Company providing
for such shares of the Company to serve as funding vehicles for separate
accounts
underlying variable annuity contracts and/or variable life insurance contracts
("Participating Insurance Companies"), provided that you may in your discretion
refuse to accept orders for shares from any particular applicant.
4. Sale of Shares. Subject to the provisions of paragraph 5 hereof and to
such minimum purchase requirements as may from time to time be currently
indicated in the Company's prospectus, you are authorized tic) sell as agent on
behalf of the Company authorized and unissued shares of the Capital Stock of the
Company registered under the Securities Act of 1933, as amended, to
Participating Insurance Companies, provided that each such sale is made in
accordance with the terms of the applicable participation agreement. The sales
price of such shares shall be their net asset value provided that each such sale
is made as defined in paragraph 6 hereof.
Whenever in their judgment such action is warranted by unusual market,
economic or political conditions, or by abnormal circumstances of any kind
deemed by the parties hereto to render sales of the Company's shares not in the
best interest of the Company, the parties hereto may decline to accept any
orders for, or make any sales of, any shares until such time as those parties
deem it advisable to accept such orders and to make such sales and both parties
shall mutually agree to any such determination.
5. Sale of Shares to Participating, Insurance Companies by the Company. Any
right granted to you to accept orders for shares or make sales on behalf of the
Company will not apply to shares issued in connection with the merger or
consolidation of any other investment company with the Company or its
acquisition, by purchase or otherwise, of all or substantially all the assets of
any investment company or substantially all the outstanding shares of any such
company,, and such right shall not apply to shares that may be offered by the
Company to shareholders by virtue of their being
shareholders of the Company, including shares issued in payment of any dividend
or distribution by the Company-
6. Net Asset Value. All shares of the Company sold to Participating
Insurance Companies by you as agent for the Company will be sold at their net
asset value per share next computed after receipt of a purchase order by a
Participating Insurance Company in accordance with the ten-ns of the applicable
participation agreement. Net asset value per share shall be computed in the
manner provided in the Company's Articles of Incorporation, as now in effect or
as it may be amended.
7. Suspension of Sales and Purchases. If and whenever the determination of
asset value is suspended pursuant to the Company's Articles of Incorporation,
and such suspension has become effective, until such suspension is terminated,
no further orders for the sale or purchase of shares shall be accepted by you
except such orders placed with you (or with a Participating Insurance Company)
before you (or such Participating Insurance Company) had knowledge of the
suspension. In addition, the Company reserves the right to suspend sales and
purchases and your authority to accept orders for sales and purchases of shares
on behalf of the Company if, in the judgment of a majority of its Board of
Directors or a majority of the Executive Committee of its Board of Directors, if
such Committee exists, it is in the best interests of the Company to do so, such
suspension to continue for such period as may be determined by such majority;
and in that event, no shares will be sold or purchased by the Company or by you
on behalf of the Company while such suspension remains in effect except for
shares necessary to cover orders accepted by you (or by a Participating
Insurance Company) before you (or such Participating Insurance Company) had
knowledge of the
suspension. The Company will notify you promptly of any such suspension of the
determination of net asset value or of any such suspension of sales and
purchases of shares.
The Company agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange Commission for amendments
to the registration statement or prospectus then in effect or for additional
information;
(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
prospectus then in effect or the initiation of any proceeding for that purpose;
(c) of the happening of any event, to the best of its knowledge, which
makes untrue any statement of a material fact made in the registration statement
or prospectus then in effect or which requires the making of a change in such
registration statement or prospectus in order to make the statements therein not
misleading; and
(d) of all actions of the Securities and Exchange Commission with respect
to any amendments to any registration statement or prospectus which may from
time to time be filed with the Securities and Exchange Commission that
materially affect the performance of your services under this Agreement.
8. Expenses. The Company will pay all fees and expenses in connection with
the preparation and filing of any registration statement and prospectus or
amendments thereto under the Securities Act of 1933, as amended, covering the
issue and sale of its shares and in connection with the qualification of shares
for sale in the various states and countries in which the Company shall
determine it advisable to qualify such shares for sale, the costs of all stock
certificates and the fees and expenses of its transfer agent or shareholders'
servicing agent or registrar. It will also pay any
issue taxes. You will pay all expenses of printing prospectuses and other sales
literature (except copies of prospectuses and other sales literature which may
from time to time be sent to existing shareholders of the Fund), all fees and
expenses in connection with your qualification as a dealer in the various states
and countries, and all other expenses in connection with the sale and offering
for sale of the shares of the Company which are not payable by the Company
pursuant to the provisions of this paragraph 8.
9. Conformity with Law. You agree that in selling and purchasing the shares
of the Company you will duly conform in all respects with the laws of the United
States and any state or country in which such shares may be offered for sale by
you pursuant to this agreement.
10. Indemnification. You agree to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act of 1933, as
amended, against any and all losses, claims, damages, liabilities or litigation
expenses (including legal and other expenses) to which the Company or such
directors, officers or controlling person may become subject under such Act,
under any other statute, at common law or otherwise, arising out of the
acquisition of any shares by any person or the sale of any shares by any person
to the Company through you which (i) may be based upon any wrongful act by you
or any of your employees or representatives, or (ii) may be based upon any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering shares of the Company or any
amendment thereof or supplement thereto or 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 if such statement or omission was made in
reliance upon information furnished or confirmed in writing to the Company by
you, provided, however, that
in no case is your indemnity in favor of a director or officer or any other
person deemed to protect such director or officer or other person against
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties under
this agreement.
The Company agrees to indemnify and hold harmless you and each of your
directors and officers and each person, if any, who controls you within the
meaning of Section 15 of the Securities Act of 1933, as amended, against any and
all losses, claims, damages, liabilities or litigation expenses (including legal
and other expenses) to which you or such directors, officers or controlling
person may become subject under such Act, under any other statute, at common law
or otherwise, arising out of the acquisition of any shares by any person or the
sale of any shares by any person to the Company through you which (i) may be
based upon any wrongful act by the Company or any of its employees or
representatives, or (ii) except as described in clause (ii) of the preceding
paragraph, may be based upon any untrue statement or alleged untrue statement of
a material fact contained in a registration statement or prospectus covering
shares of the Company or any amendment thereof or supplement thereto or omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided,
however, that in no case is the Company's indemnity in favor of a director or
officer or any other person deemed to protect such director or officer or other
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of obligations
and duties under this Agreement. You hereby waive any rights to indemnification
concerning your obligations and duties hereunder to which you might be entitled
under the Company's By-Laws.
You are not authorized to give any information or to make any
representations on behalf of the Company in connection with the sale or purchase
of shares of the Company other than the information and representations
contained in a registration statement or prospectus covering shares of the
Company, as such registration statement and prospectus may be amended or
supplemented from time to time. No person other than you is authorized to act as
agent for the Company in connection with the offering or sale of shares of the
Company to the public or otherwise.
11. Duration and Termination Of This Agreement. This Agreement shall become
effective as of the date hereof and shall continue for an initial two-year term
and will continue from year to year thereafter, but only so long as such
continuance is specifically approved at least annually by the Board of Directors
of the Company or by vote of a majority of the outstanding voting securities of
the Company. In addition, the Company may not renew or perform this Agreement
unless the terms thereof and any renewal thereof have been approved by the vote
of a majority of the Board of Directors of the Company who are not interested
persons of you or of the Company cast in person at a meeting called for the
purpose of voting on such approval. This Agreement may, on 60 days' written
notice, be terminated at any time without the payment of any penalty, by the
Board of Directors of the Company, by vote of a majority of the outstanding
voting securities of the Company, or by you. This Agreement shall automatically
terminate in the event of its assignment. In interpreting the provisions of this
paragraph, the definitions contained in Section 2(a) of the Investment Company
Act of 1940, as amended, and Rules thereunder (particularly the definitions of
"interested person," "assignment," "voting security" and "vote of a majority of
the outstanding voting securities") shall be applied.
12. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. If the Company should at any time deem it
necessary or advisable in the best interests of the Company that any amendment
of this agreement be made in order to comply with the recommendations or
requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under state or federal tax laws and should
notify you of the form of such amendment, and the reasons therefor, and if you
should decline to assent to such amendment, the Company may terminate this
agreement forthwith. If vou should at any time request that a change be made in
the Company's Articles of Incorporation or By-Laws, or in its methods of doing
business, in order to comply with any requirements of federal law or regulations
of the Securities and Exchange Commission or of a national securities
association of which you are or may be a member, relating to the sale of the
shares of the Company, and the Company should not make such necessary change
within a reasonable time, you may terminate this agreement forthwith.
13. Miscellaneous.
(a) 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.
(b) The Company recognizes that, except to the extent otherwise agreed to
by the parties hereto, your directors, officers and employees may from time to
time serve as directors, trustees, officers and employees of corporations and
business trusts (including other investment companies),
and that you or your affiliates may enter into distribution or other agreements
with other corporations and trusts.
(c) In the event that the Board of Directors of any additional portfolios
indicate by vote that such portfolios are to be made parties to this Agreement,
whether such portfolios were in existence at the time of the effective date of
this Agreement or subsequently formed, Schedule A hereto shall be amended to
reflect the addition of such new portfolios and such new portfolios shall
thereafter become parties hereto. In the event that any of the portfolios on
Schedule A terminates its registration as a management investment company, or
otherwise ceases operations, Schedule A shall be amended to reflect the deletion
of such portfolio and its various classes.
(d) This Agreement shall be governed by the internal laws of the State of
New York without giving effect to principles of conflicts of laws.
(e) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Company, whereupon this Agreement shall become a binding
contract.
Yours very truly,
FIRST EAGLE SOGEN VARIABLE FUNDS, INC.
By:
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Co-President
The foregoing agreement is
hereby accepted as of the
date thereof.
XXXXXXX AND X. XXXXXXXXXXXX, INC.
By:
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Name:
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Title:
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SCHEDULE A
SOGEN VARIABLE FUNDS, INC.
SoGen Overseas Variable Fund
