EXHIBIT 99.(d)(3)
XXXXXX XXXXXXX SELECT DIMENSIONS INVESTMENT SERIES
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 31st day of July, 2003, between Xxxxxx
Xxxxxxx Select Dimensions Investment Series, an unincorporated business trust
organized under the laws of the Commonwealth of Massachusetts (the "TRUST"), and
Xxxxxx Xxxxxxx Distributors Inc., a Delaware corporation (the "DISTRIBUTOR"):
W I T N E S S E T H:
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 ACT"), as a diversified open-end investment company
and it is in the interest of the Trust to offer its shares for sale
continuously, and
WHEREAS, the Trust and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of each Portfolio of the
Trust's transferable shares of beneficial interest, of $.01 par value (the
"SHARES"), in order to promote the growth of the Trust and facilitate the
distribution of its shares.
NOW, THEREFORE, the parties agree as follows:
Section 1. (a) APPOINTMENT OF THE DISTRIBUTOR. The Trust hereby
appoints the Distributor as the principal underwriter and distributor of the
Trust to sell Shares to insurance companies to be held in their separate
accounts pursuant to various annuity contracts and variable life insurance
policies ("Insurance Companies"), on the terms set forth in this Agreement and
the Trust's Prospectus (defined below), and the Distributor hereby accepts such
appointment and agrees to act hereunder. The Trust, during the term of this
Agreement, shall sell Shares to the Distributor upon the terms and conditions
set forth herein.
(b) The Distributor agrees to purchase Shares, as principal for
its own account, from each Portfolio of the Trust and to sell Shares as
principal to investors and Insurance Companies, upon the terms described herein
and in the Trust's prospectus (the "PROSPECTUS") included in the Trust's
registration statement (the "REGISTRATION STATEMENT") most recently filed from
time to time with the U.S. Securities and Exchange Commission (the "SEC") and
effective under the Securities Act of 1933, as amended (the "1933 ACT"), and
1940 Act or as said Prospectus may be otherwise amended or supplemented and
filed with the SEC pursuant to Rule 424 under the 1933 Act.
Section 2. EXCLUSIVE NATURE OF DUTIES. The Distributor shall be the
exclusive principal underwriter and distributor of the Trust, except that the
exclusive rights granted to the Distributor to sell the Shares shall not apply
to Shares issued by the Trust: (i) in connection with the merger or
consolidation of any other investment company or personal holding company with
the Trust or the acquisition by purchase or otherwise of all (or substantially
all) the assets or the outstanding
shares of any such company by the Trust; or (ii) pursuant to reinvestment of
dividends or capital gains distributions; or (iii) pursuant to the reinstatement
privilege afforded redeeming shareholders.
Section 3. PURCHASE OF SHARES FROM THE TRUST. (a) The Distributor
shall have the right to buy from the Trust the Shares needed, but not more than
the Shares needed (except for clerical errors in transmission), to fill
unconditional orders for Shares placed with the Distributor by the Insurance
Companies. The price which the Distributor shall pay for the Shares so purchased
from the Trust shall be the net asset value, determined as set forth in the
Prospectus.
(b) The Shares are to be resold by the Distributor at the same net
asset value to the Insurance Companies for which the Distributor paid to the
Trust for such Shares and at cost, as set forth in the Prospectus.
(c) The Trust shall have the right to suspend the sale of the
Shares at times when redemption is suspended pursuant to the conditions set
forth in Section 4(b) hereof. The Trust shall also have the right to suspend the
sale of the Shares if trading on the New York Stock Exchange shall have been
suspended, if a banking moratorium shall have been declared by federal or New
York authorities, or if there shall have been some other extraordinary event
which, in the judgment of the Trust, makes it impracticable to sell the Shares.
(d) The Trust, or any agent of the Trust designated in writing by
the Trust, shall be promptly advised of all purchase orders for Shares received
by the Distributor. The Distributor will confirm orders upon their receipt, and
the Trust (or its agent) upon receipt of payment therefor and instructions will
deliver such Shares or a statement confirming the issuance of Shares. Payment
shall be made to the Trust in New York Clearing House funds. The Distributor
agrees to cause such payment and such instructions to be delivered promptly to
the Trust (or its agent).
Section 4. REPURCHASE OR REDEMPTION OF SHARES. (a) Any of the
outstanding Shares may be tendered for redemption at any time, and the Trust
agrees to redeem the Shares so tendered in accordance with the applicable
provisions set forth in the Prospectus. The price to be paid to redeem the
Shares shall be equal to the net asset value determined as set forth in the
Prospectus. All payments by the Trust hereunder shall be made in the manner set
forth below.
Upon any redemption of Shares, the Trust shall pay the total amount of
the redemption price in accordance with applicable provisions of the Prospectus
in New York Clearing House funds.
(b) Redemption of Shares or payment by the Trust may be suspended
at times when the New York Stock Exchange is closed, when trading on said
Exchange is restricted, when an emergency exists as a result of which disposal
by the Trust of securities owned by it is not reasonably practicable or it is
not reasonably practicable for the Trust fairly to determine the value of its
net assets, or during any other period when the Securities and Exchange
Commission, by order, so permits.
Section 5. DUTIES OF THE TRUST. (a) The Trust shall furnish to the
Distributor copies of all information, financial statements and other papers
which the Distributor may reasonably request
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for use in connection with the distribution of the Shares, including one
certified copy, upon request by the Distributor, of all financial statements
prepared by the Trust and examined by independent accountants. The Trust shall,
at the expense of the Distributor, make available to the Distributor such number
of copies of the Prospectus as the Distributor shall reasonably request.
(b) The Trust shall take, from time to time, but subject to the
necessary approval of its shareholders, all necessary action to fix the number
of its authorized Shares and to register Shares under the 1933 Act, to the end
that there will be available for sale such number of shares as investors may
reasonably be expected to purchase.
(c) The Trust shall, at the expense of the Distributor, furnish,
in reasonable quantities upon request by the Distributor, copies of annual and
interim reports of the Trust.
Section 6. DUTIES OF THE DISTRIBUTOR. (a) The Distributor shall sell
shares of the Trust to the Insurance Companies as orders are received, but shall
not be obligated to sell any specific number of Shares. The services of the
Distributor hereunder are not exclusive and it is understood that the
Distributor acts as principal underwriter for other registered investment
companies and intends to do so in the future.
(b) The Distributor shall not give any information or make any
representations, other than those contained in the Registration Statement or
related Prospectus and any sales literature specifically approved by the Trust.
(c) The Distributor agrees that it will comply with the terms and
limitations of the Conduct Rules of the National Association of Securities
Dealers, Inc.
Section 7. PAYMENT OF EXPENSES. (a) The Distributor shall bear all
expenses incurred by it in connection with its duties and activities under this
Agreement (except such expenses as are specifically undertaken herein by the
Trust). It is understood and agreed that, so long as the Trust's Amended and
Restated Plan of Distribution pursuant to Rule 12b-1 under the 1940 Act ("RULE
12b-1 PLAN") continues in effect, any expenses incurred by the Distributor
hereunder may be paid in accordance with the terms of such Rule 12b-1 Plan.
(b) The Trust shall bear all costs and expenses of the Trust,
including fees and disbursements of its counsel and independent accountants, in
connection with the preparation and filing of any required Registration
Statements and Prospectuses and all amendments and supplements thereto, and the
expense of preparing, printing, mailing and otherwise distributing prospectuses,
annual or interim reports or proxy materials to contract owners of the variable
annuity contracts and flexible premium variable life insurance contracts.
(c) If deemed necessary or advisable to qualify the Shares for
sale under state securities laws, the Trust shall bear the cost and expenses of
qualification and, if necessary or advisable in connection therewith, of
qualifying the Trust as a broker or dealer, in such states of the United States
or other jurisdictions as shall be selected by the Trust and the Distributor
pursuant to Section 5(c) hereof and the cost and expenses payable to each such
state for continuing qualification therein until the Trust decides to
discontinue such qualification pursuant to Section 5(c) hereof.
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Section 8. INDEMNIFICATION. (a) The Trust shall indemnify and hold
harmless the Distributor and each person, if any, who controls the Distributor
against any loss, liability, claim, damage or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith) arising by
reason of any person acquiring any Shares, which may be based upon the 1933 Act,
or on any other statute or at common law, on the ground that the Registration
Statement or related Prospectus, as from time to time amended and supplemented,
or the annual or interim reports to shareholders of the Trust, includes an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, unless such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Trust in connection therewith by
or on behalf of the Distributor; provided, however, that in no case (i) is the
indemnity of the Trust in favor of the Distributor and any such controlling
persons to be deemed to protect such Distributor or any such controlling persons
thereof against any liability to the Trust or its security holders to which the
Distributor or any such controlling persons would otherwise be subject by reason
of willful misfeasance, bad faith or negligence in the performance of its duties
or by reason of reckless disregard of its obligations and duties under this
Agreement; or (ii) is the Trust to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the
Distributor or any such controlling persons, unless the Distributor or such
controlling persons, as the case may be, shall have notified the Trust in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
Distributor or such controlling persons (or after the Distributor or such
controlling persons shall have received notice of such service on any designated
agent), but failure to notify the Trust of any such claim shall not relieve it
from any liability which it may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Trust will be entitled to participate at its own expense in the
defense, or if it so elects, to assume the defense, of any suit brought to
enforce any such liability, but if the Trust elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Distributor or such controlling person or persons, defendant or defendants in
the suit. In the event the Trust elects to assume the defense of any such suit
and retain such counsel, the Distributor or such controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them, but, in case the Trust does not elect to
assume the defense of any such suit, it will reimburse the Distributor or such
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. The Trust shall
promptly notify the Distributor of the commencement of any litigation or
proceedings against it or any of its officers or trustees in connection with the
issuance or sale of the Shares.
(b) (i) The Distributor shall indemnify and hold harmless the
Trust and each of its Trustees and officers and each person, if any, who
controls the Trust against any loss, liability, claim, damage, or expense
described in the foregoing indemnity contained in subsection (a) of this
Section, but only with respect to statements or omissions made in reliance upon,
and in conformity with, information furnished to the Trust in writing by or on
behalf of the Distributor for use in connection with the Registration Statement
or related Prospectus, as from time to time amended, or the annual or interim
reports to shareholders; and as the result of willful misfeasance, bad faith or
negligence of the Distributor in the performance of its duties or by reason of
the reckless disregard of its obligations and duties under this Agreement.
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(ii) The Distributor shall indemnify and hold harmless the Trust,
the Trust's transfer agent, individually and in its capacity as the Trust's
transfer agent, and the Trust's investment manager from and against any claims,
damages and liabilities which arise as a result of actions taken pursuant to
instructions from, or on behalf of, the Distributor to: (1) redeem all or a part
of shareholder accounts in the Trust and pay the proceeds to, or as directed by,
the Distributor for the account of each shareholder whose Shares are so redeemed
and (2) register Shares in the names of investors, confirm the issuance thereof
and receive payment therefor.
(iii) In case any action shall be brought against the Trust or any
person so indemnified by this subsection 8(b) in respect of which indemnity may
be sought against the Distributor, the Distributor shall have the rights and
duties given to the Trust, and the Trust and each person so indemnified shall
have the rights and duties given to the Distributor by the provisions of
subsection (a) of this Section 8.
Section 9. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement
shall remain in force until April 30, 2004 and from year to year thereafter,
provided such continuance is approved at least annually by (i) the Trustees of
the Trust, or by the vote of a majority of the outstanding voting securities of
the Trust, cast in person or by proxy, and (ii) a majority of those Trustees who
are not parties to this Agreement or interested persons of any such party and
who have no direct or indirect financial interest in this Agreement or in any
agreement related thereto, cast in person at a meeting called for the purpose of
voting upon such approval.
This Agreement may be terminated at any time without the payment of
any penalty, by the Board of Trustees of the Trust, by a majority of the
Trustees of the Trust who are not interested persons of the Trust and who have
no direct or indirect financial interest in this Agreement or any agreement
related thereto, or by vote of a majority of the outstanding voting securities
of the Trust, or by the Distributor, on sixty days' written notice to the other
party. This Agreement shall automatically terminate in the event of its
assignment.
The terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person," when used in this Agreement, shall have
the respective meanings specified in the 1940 Act.
Section 10. AMENDMENTS OF THIS AGREEMENT. This Agreement may be
amended by the parties only if such amendment is specifically approved by (i)
the Trustees of the Trust, or by the vote of a majority of outstanding voting
securities of the Trust, and (ii) a majority of those Trustees of the Trust who
are not parties to this Agreement or interested persons of any such party and
who have no direct or indirect financial interest in this Agreement or in any
agreement related thereto, cast in person at a meeting called for the purpose of
voting on such approval.
Section 11. GOVERNING LAW. This Agreement shall be construed in
accordance with the law of the State of New York and the applicable provisions
of the 1940 Act. To the extent the applicable law of the State of New York, or
any of the provisions herein, conflicts with the applicable provisions of the
1940 Act, the latter shall control.
Section 12. PERSONAL LIABILITY. The Declaration of Trust establishing
the Trust, dated June 2, 1994, a copy of which, together with all amendments
thereto (the "DECLARATION"), is on
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file in the office of the Secretary of the Commonwealth of Massachusetts,
provides that the name Xxxxxx Xxxxxxx Select Dimensions Investment Series refers
to the Trustees under the Declaration collectively as Trustees but not as
individuals or personally; and no Trustee, shareholder, officer, employee or
agent of Xxxxxx Xxxxxxx Select Dimensions Investment Series shall be held to any
personal liability, nor shall resort be had to their private property for the
satisfaction of any obligation or claim or otherwise, in connection with the
affairs of said Xxxxxx Xxxxxxx Select Dimensions Investment Series, but the
Trust estate only shall be liable.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement, as
amended, to be duly executed on July 31, 2003.
XXXXXX XXXXXXX SELECT DIMENSIONS
INVESTMENT SERIES
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
XXXXXX XXXXXXX DISTRIBUTORS INC.
By: /s/ Xxxx X. Xxxx III
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Xxxx X. Xxxx III
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