DISTRIBUTION AGREEMENT
NATIONS ANNUITY TRUST
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, Nations Annuity Trust (the "Trust"), a
Delaware business trust, has agreed that Xxxxxxxx Inc. (the "Distributor") shall
be, for the period of this Agreement, the exclusive distributor of the shares of
common stock in all classes of shares ("Shares") of the investment portfolios of
the Trust listed on Schedule I (individually, a "Portfolio" and collectively the
"Portfolios"). Absent written notification to the contrary by either the Trust
or the Distributor, each new investment portfolio established in the future
shall automatically become a "Portfolio" for all purposes hereunder and shares
of each new class established in the future shall automatically become "Shares"
for all purposes hereunder as if set forth on Schedule I.
1. Services as Distributor.
1.1 The Distributor will act as agent for the distribution of
Shares in accordance with the instructions of the Trust's Board of Trustees and
the Trust's registration statement and prospectus then in effect under the
Securities Act of 1933, as amended (the "1933 Act"), and will transmit promptly
any orders received by it for the purchase or redemption of Shares to the Trust
or its transfer agent.
1.2 The Distributor agrees to use appropriate efforts to solicit
orders for the sale of Shares and will undertake such advertising and promotion
as it believes appropriate in connection with such solicitation. The Trust
understands that the Distributor is and may in the future be the distributor of
shares of other investment company portfolios including portfolios having
investment objectives similar to those of the Portfolios. The Trust further
understands that existing and future investors in the Portfolios may invest in
shares of such other portfolios. The Trust agrees that the Distributor's duties
to such portfolios shall not be deemed in conflict with its duties to the Trust
under this paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance such
activities as it deems reasonable and which are primarily intended to result in
the sale of Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current shareholders, and the printing and mailing of
sales literature. The Distributor shall be responsible for reviewing and
providing advice and counsel on all sales literature (e.g., advertisements,
brochures and shareholder communications) with respect to each of the
Portfolios. In addition, the Distributor will provide one or more
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persons, during normal business hours, to respond to telephone questions with
respect to the Portfolios.
1.4 All activities by the Distributor and its agents and employees
as distributor of Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made or
adopted pursuant to the Investment Company Act of 1940, as amended (the "1940
Act") by the Securities and Exchange Commission (the "SEC") or any securities
association registered under the Securities Exchange Act of 1934, as amended.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by other circumstances of any kind,
the Trust's officers may decline to accept any orders for, or make any sales of
Shares until such time as those officers deem it advisable to accept such orders
and to make such sales.
1.6 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the registration or
qualification of Shares for sale in such states as the Distributor may designate
to the Trust and the Trust may approve, and the Trust shall pay all fees and
other expenses incurred in connection with such registration or qualification.
1.7 The Trust shall furnish from time to time, for use in
connection with the sale of Shares, such information with respect to the
Portfolios and Shares as the Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Trust shall also
furnish the Distributor upon request with: (a) audited annual and unaudited
semi-annual statements of the Trust's books and accounts with respect to each
Portfolio, and (b) from time to time such additional information regarding the
Portfolios' financial condition as the Distributor may reasonably request.
1.8 The Distributor may be reimbursed for all or a portion of the
expenses described above to the extent permitted by a distribution plan adopted
by the Trust on behalf of a Portfolio pursuant to Rule 12b-1 under the 1940 Act.
No provision of this Agreement shall be deemed to prohibit any payments by a
Portfolio to the Distributor or by a Portfolio or the Distributor to investment
dealers, banks or other financial institutions through whom shares of the
Portfolio are sold where such payments are made under a distribution plan
adopted by the Trust on behalf of such Portfolio pursuant to Rule 12b-1 under
the 1940 Act. In addition, the Distributor shall be entitled to retain any
front-end sales charge imposed upon the sale of the Shares (and reallow a
portion thereof) as specified in the Trust's registration statement and the
Trust shall pay to the Distributor the proceeds from any contingent deferred
sales charge imposed on the redemption of the shares as specified in the Trust's
registration statement.
1.9 The Distributor will execute and deliver agreements with
broker/dealers, financial institutions and other industry professionals based on
the forms attached hereto or based on the additional forms of agreement approved
from time to time by the Trust's Board of Trustees with respect to the various
classes of shares of the Portfolios, including but not limited
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to forms of sales support agreements approved in connection with a distribution
approved in accordance with Rule 12b-1 under the 1940 Act.
2. Representations; Indemnification.
2.1 The Trust represents to the Distributor that all registration
statements and prospectuses filed by the Trust with the SEC under the 1933 Act,
with respect to Shares have been prepared in conformity with the requirements of
the 1933 Act and rules and regulations of the SEC thereunder. As used in this
Agreement, the terms "registration statement" and "prospectus" shall mean any
registration statement and then current prospectus (together with any related
then current statement of additional information) filed with the SEC with
respect to Shares, and any amendments and supplements thereto which at any time
shall have been filed therewith. The Trust represents and warrants to the
Distributor that any registration statement and prospectus, when such
registration statement becomes effective, will contain all statements required
to be stated therein in conformity with the 1933 Act and the rules and
regulations of the SEC; that all statements of fact contained in any such
registration statement and prospectus will be true and correct when such
registration statement and prospectus become effective; and that neither any
registration statement nor any prospectus when any 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 to a purchaser of Shares. The Trust may, but
shall not be obligated to, propose from time to time such amendment or
amendments to any registration statement and such supplement or supplements to
any prospectus which in light of future developments, may, in the opinion of the
Trust's counsel, be necessary or advisable. The Trust shall promptly notify the
Distributor of any advice given to it by the Trust's counsel regarding the
necessity or advisability so to amend or supplement such registration statement
or prospectus. If the Trust shall not propose such amendment or amendments
and/or supplement or supplements within fifteen days after receipt by the Trust
of a written request from the Distributor to do so, the Distributor may, at its
option, terminate this Agreement. The Trust shall not file any amendment to any
registration statement or supplement to any prospectus without giving the
Distributor reasonable notice thereof in advance; provided, however, that
nothing contained in this Agreement shall in any way limit the Trust's right to
file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
2.2 The Trust authorizes the Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of Shares and represented by the Trust as being the then current form of
prospectus. The Trust agrees to indemnify, defend and hold the Distributor, its
several officers and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Distributor, its
officers and directors, or any such controlling person, may incur under the 1933
Act or under common law or otherwise, arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact contained in any
registration statement or any prospectus or arising out of or based upon any
omission, or alleged omission, to
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state a material fact required to be stated in any registration statement or
prospectus or necessary to make any statement in such documents not misleading;
provided, however, that the Trust's agreement to indemnify the Distributor, its
officers or directors, and any such controlling person shall not be deemed to
cover any claims, demands, liabilities or expenses arising out of any untrue
statement or alleged untrue statement or omission or alleged omission made in
any registration statement or prospectus or in any financial or other statements
in reliance upon and in conformity with any information furnished to the Trust
by the Distributor or any affiliate thereof and used in the preparation thereof;
and further provided that the Trust's agreement to indemnify the Distributor and
the Trust's representations and warranties herein set forth shall not be deemed
to cover any liability to the Trust or its shareholders to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of the Distributor's
reckless disregard of its obligations and duties under this Agreement. The
Trust's agreement to indemnify the Distributor, its officers and directors, and
any such controlling person, as aforesaid, is expressly conditioned upon the
Trust's being notified of any action brought against the Distributor, its
officers or directors, or any such controlling person, such notification to be
given by letter or by telegram or transmitted by similar telecommunications
device, addressed to the Trust at its principal office and sent to the Trust by
the person against whom such action is brought, within a reasonable period of
time after the summons or other first legal process shall have been served. The
failure to so notify the Trust of any such action shall not relieve the Trust
from any liability which the Trust may have to the person against whom such
action is brought by reason of any such untrue, or allegedly untrue, statement
or omission, or alleged omission, otherwise than on account of the Trust's
indemnity agreement contained in this paragraph 2.2. The Trust will be entitled
to assume the defense of any suit brought to enforce any such claim, demand or
liability, but, in such case, such defense shall be conducted by counsel of good
standing chosen by the Trust and approved by the Distributor, which approval
shall not unreasonably be withheld. In the event the Trust elects to assume the
defense of any such suit and retain counsel of good standing approved by the
Distributor, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them; but in case the
Trust does not elect to assume the defense of any such suit, or in case the
Distributor reasonably does not approve of counsel chosen by the Trust, the
Trust will reimburse the Distributor, its officers and directors, or the
controlling person or persons named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by the Distributor or them. The
Trust's indemnification agreement contained in this paragraph 2.2 and the
Trust's representations and warranties in this Agreement shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Distributor, its officers and directors, or any controlling
person, and shall survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to the Distributor's benefit, to the benefit of
its several officers and directors, and their respective estates, and to the
benefit of the controlling persons and their successors. The Trust agrees
promptly to notify the Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or Trustees in connection
with the issue and sale of any Shares.
2.3 The Distributor agrees to indemnify, defend and hold the
Trust, its several officers and Trustees, and any person who controls the Trust
within the meaning of Section 15 of the 1933 Act free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
costs of investigation or defending such claims, demands or liabilities
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and any counsel fees incurred in connection therewith) which the Trust, its
officers or Trustees or any such controlling person, may incur under the 1933
Act or under common law or otherwise, but only to the extent that such liability
or expense incurred by the Trust, its officers or Trustees, or such controlling
person resulting from such claims or demands, shall arise out of or be based
upon any untrue, or alleged untrue, statement of a material fact contained in
information furnished by the Distributor or any affiliate thereof to the Trust
or its counsel and used in the Trust's registration statement or corresponding
statements made in the prospectus, or shall arise out of or be based upon any
omission, or alleged omission, to state a material fact in connection with such
information furnished by the Distributor or any affiliate thereof to the Trust
or its counsel required to be stated in such answers or necessary to make such
information not misleading. The Distributor's agreement to indemnify the Trust,
its officers and Trustees, and any such controlling person, as aforesaid, is
expressly conditioned upon the Distributor's being notified of any action
brought against the Trust, its officers or Trustees, or any such controlling
person, such notification to be given by letter or telegram addressed to the
Distributor at its principal office in Little Rock, Arkansas and sent to the
Distributor by the person against whom such action is brought, within a
reasonable period of time after the summons or other first legal process shall
have been served. The Distributor shall have the right to control the defense of
such action, with counsel of its own choosing, satisfactory to the Trust, if
such action is based solely upon such alleged misstatement or omission on the
Distributor's part or any affiliate thereof, and in any other event the Trust,
its officers or Trustees or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action. The
failure so to notify the Distributor of any such action shall not relieve the
Distributor or any affiliate thereof from any liability which the Distributor or
any affiliate thereof may have to the Trust, its officers or Trustees, or to
such controlling person by reason of any such untrue or alleged untrue
statement, or omission or alleged omission, otherwise than on account of the
Distributor's indemnity agreement contained in this paragraph 2.3.
2.4 No Shares shall be offered by either the Distributor or the
Trust under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Trust if and so
long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the 1933 Act, or if and so long as a current prospectus, as required by Section
10(b) of the 1933 Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph 2.4 shall in any way restrict or have any
application to or bearing upon the Trust's obligation to repurchase Shares from
any shareholder in accordance with the provisions of the Trust's prospectus or
Declaration of Trust.
2.5 The Trust agrees to advise the Distributor as soon as
reasonably practical:
(a) of any request by the SEC for amendments to the
registration statement or prospectus then in effect;
(b) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or prospectus then in effect or
of the initiation of any proceeding for that purpose;
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(c) of the happening of any event that 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;
(d) of all actions of the SEC with respect to any amendment
to any registration statement or prospectus which may from time to time be filed
with the SEC; and
(e) if a current prospectus is not on file with the SEC.
For purposes of this section, informal requests by or acts of the
staff of the SEC shall not be deemed actions of or requests by the SEC.
3. Confidentiality.
The Distributor agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Trust all records and
other information relative to the Portfolios and/or the Trust and its prior,
present or potential shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Trust, which approval shall not be unreasonably withheld and may not be withheld
where the Distributor may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
4. Limitations of Liability.
Except as provided in paragraph 2.3, the Distributor shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust or any Portfolio in connection with matters to which this agreement
relates, except a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from reckless
disregard of its obligations and duties under this agreement.
5. Term.
This agreement shall become effective on the date of its execution
and, unless sooner terminated as provided herein, shall continue in effect for a
period of two years from the date written below. This Agreement shall thereafter
continue from year to year, provided such continuance is specifically approved
at least annually by (i) the Trust's Board of Trustees, or (ii) by a vote of a
majority (as defined in the 1940 Act) of the outstanding voting securities of
the Portfolio, provided that in either event the continuance is also approved by
the majority of the Trust's Trustees who are not parties to this agreement or
interested persons (as defined in the 1940 Act) of any such party, by vote cast
in person at a meeting called for the purpose of voting on such approval. This
agreement is not assignable and is terminable with respect to a Portfolio,
without penalty, on not less than sixty (60) days' notice, by the Trust's Board
of Trustees, by vote of a majority (as defined in the 1940 Act) of the
outstanding voting securities of such
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Portfolio, or by the Distributor. This agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act).
6. Miscellaneous.
6.1 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 an enforcement of the change, waiver, discharge or
termination is sought.
6.2 This agreement shall be governed by the laws of the State of
Arkansas.
7. Counterparts.
7.1 This Agreement may be executed in any manner of counterparts,
each of which shall be deemed an original.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place indicated below,
whereupon it shall become a binding agreement between us.
Yours very truly,
NATIONS ANNUITY TRUST
By: /s/ X. Xxx Xxxxxx
-------------------------------------
Name: X. Xxx Xxxxxx
Title: President and Chairman of
the Board of Trustees
Accepted:
XXXXXXXX INC.
By:/s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
Dated as of February 25, 1998
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SCHEDULE I
1. Nations Balanced Assets Portfolio
2. Nations Disciplined Equity Portfolio
3. Nations International Growth Portfolio
4. Nations Managed Index Portfolio
5. Nations Managed SmallCap Index Portfolio
6. Nations Xxxxxxx Focused Equities Portfolio
7. Nations Xxxxxxx Growth & Income Portfolio
8. Nations Value Portfolio
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