EXHIBIT 23(E)(1)
XXXXX VARIABLE ACCOUNT FUND, INC.
DISTRIBUTING AGREEMENT
AGREEMENT dated as of January 1, 2001, between XXXXX VARIABLE ACCOUNT FUND,
INC., a Maryland corporation, hereinafter called the "Company", and XXXXX
DISTRIBUTORS, LLC, a Delaware Limited Liability Company, hereinafter called the
"Distributor".
WITNESSETH
1. APPOINTMENT OF FUND DISTRIBUTOR. The Company hereby appoints the
Distributor as the exclusive distributor to sell as principal and not as
agent shares of capital stock of the Company during the term of this
Agreement.
2. SALES OF CAPITAL STOCK. The Company agrees to sell and deliver to the
Distributor, upon the terms set forth herein, such fully-paid and
non-assessable shares of capital stock of the Company ("Shares") then
effectively registered for continuous offering under the Securities Act of
1933 (the "1933 Act") as the Distributor shall order from the Company, but
only to the extent that the Distributor shall have received purchase
orders therefor. All orders from the Distributor shall be subject to
confirmation by the Company, and the Company authorizes the Distributor to
reject any purchase order.
The Distributor as principal may sell and distribute any Shares so
purchased, through dealers or otherwise, in such manner not inconsistent
with law and all applicable rules and regulations, including those of any
applicable self-regulatory organizations, and the provisions of this
Agreement, as the Distributor may from time to time determine. The
Distributor agrees to use its best efforts to effect sales of Shares, but
does not undertake to sell any specific number of Shares thereof.
The Distributor may in its discretion sell the Shares to or through such
registered and qualified retail dealers as it may select. In making
agreements with its dealers or others for sale of the Shares, the
Distributor shall act only as principal and in no sense as agent for the
Company.
3. SALES BY DISTRIBUTOR - OFFERING PRICE. All Shares, whether purchased from
the Company or otherwise, shall be offered for sale and sold by the
Distributor at a price per share (hereinafter called the "Offering Price")
in accordance with the provisions of the current prospectus applicable to
such offer and sale. Any initial or deferred sales charge and any
reduction or elimination thereof shall be determined by the Distributor in
a manner not inconsistent with law and all applicable rules and
regulations and the provisions of this Agreement, and the Company agrees
to amend its current prospectus to the extent necessary from time to time
to reflect any such determination. The Company will cause such net asset
value to be determined with such frequency and as of such times and will
cause the Offering Price to be effective for such periods as are set forth
in the current prospectus of the Company. The Company will cause such
determinations to be furnished to the Distributor as often as they are
made and shall make available to the Distributor upon request the
computations underlying any such determination.
Anything to the contrary herein notwithstanding, the Company may suspend
the Offering Price currently in effect and may decline to accept or
confirm any orders for, or to make any sales of, any Shares to the
Distributor under this Agreement until such time as it shall deem it
advisable to accept and confirm such orders and to make such sales. During
any period during which the Offering Price currently in effect shall be
suspended or during which the Company shall decline to acceptor confirm
any such orders or make any such sales, the Company shall be under no
obligation to confirm or accept any such orders or make any such sale at
any price.
4. PAYMENT. At or prior to the time of delivery by the Company to, or on the
order of the Distributor of any Shares, the Distributor will pay or cause
to be paid to the Company or to its order an amount equal to the Offering
Price of such Shares at which such order had been confirmed, less the
initial or deferred sales charge, if
any, included thereon as aforesaid. The Distributor agrees to cause to be
remitted to the Company for the benefit of the Company or to its order all
such funds promptly after receipt thereof.
5. DELIVERY OF SHARE CERTIFICATES. Delivery of certificates for Shares shall
be made as promptly as practicable after receipt by the Company of the
purchase price therefor and written request by the Distributor for such
certificates. Such certificates shall be registered in such names and
amounts as the Distributor may specify to the Company in writing.
6. COMPENSATION OF THE DISTRIBUTOR. Any initial or deferred sales charges and
any compensation to be paid the Distributor out of any Distribution Plan
described in 7(e) below shall constitute the entire compensation of the
Distributor. The Distributor may allow concessions to dealers, out of
sales charges, as the Distributor shall from time to time determine.
7. ALLOCATION OF EXPENSES. Except as otherwise provided herein, the Company
shall pay all expenses connected with (i) the organization of the Company
or any Series thereof, and (ii) the offering of Shares, including without
limitation all expenses of:
(a) Registering Shares for offer or sale under the federal securities
laws, except for prospectus printing costs as set forth below; and
(b) Reports required by and under the federal securities laws; and
(c) Issuance of Shares, including cost of stock certificates, issue taxes
(if any) and fees of legal counsel and of the transfer agent; and
(d) Registering or qualifying Shares for offer or sale under the
securities laws of any state or other jurisdiction in which the
Distributor may arrange for the sale of the Shares; and
(e) Any Distribution Plan adopted in accordance with Rule 12b-1 under the
Investment Company Act of 1940 (the "1940 Act") providing for any
payments by the Company or any Series thereof.
The Distributor will pay, or promptly reimburse the Company for, all expenses
in connection with:
(a) Preparing, printing and distributing advertising and sales literature
for use in offering the Shares to the public, including the cost of
printing copies of the prospectus and the additional cost of printing
reports to stockholders other than copies thereof required for
distribution to stockholders or for filing with any securities
authorities; and
(b) The registration or qualification of the Distributor as a dealer or
broker under state or federal laws.
Transfer taxes, if any, which may be payable in connection with the issue
and delivery of certificates in a name or names other than the name of the
Distributor will not be borne by the Company, and the Distributor agrees
to indemnify and hold the Company harmless against any such transfer
taxes. Any other taxes in connection with the sale of Shares pursuant to
this Agreement will be borne by the Company.
8. COMPANY TO FURNISH INFORMATION. The Company shall furnish to the
Distributor for use in connection with the sale of the Shares such
information with respect to the Company and the Shares as the Distributor
may reasonably request, including copies of documents filed with or
furnished to any federal or state securities authorities or sent to its
stockholders.
9. REPRESENTATIONS AND AGREEMENTS WITH RESPECT TO REGISTRATION STATEMENT AND
PROSPECTUS.
(a) As used in this Agreement, the term "registration statement" shall
include any registration statement with respect to the Shares which
is effective under the Act including any amendment
thereto, and the term "prospectus" shall include any prospectus and
statement of additional information filed as part of such registration
statement.
(b) The Company represents that the registration statement and prospectus
will conform in all material respects to the requirements of the 1933
Act and the 1940 Act and the rules and regulations thereunder 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 to
make the statements therein not misleading; provided that this
representation will not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Distributor expressly for use in the
registration statement or prospectus.
(c) The Company agrees to advise the Distributor promptly:
(i) of any request of the Securities and Exchange Commission for
amendments to the registration statement or prospectus or for
additional information;
(ii) 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 or the initiation of any
proceedings for that purpose;
(iii) of the happening of any event which makes untrue any statement,
or which requires the making of any change, in the registration
statement or prospectus in order to make the statements therein
not misleading; and
(iv) of all actions of the Securities and Exchange Commission with
respect to any amendments to the registration statement or
prospectus which may from time to time be filed with the
Securities and Exchange Commission under the 1933 Act or the
1940 Act.
10. INDEMNIFICATION. The Company agrees to indemnify, defend and hold the
Distributor, its officers and directors and any person who controls the
Distributor with 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, directors or any such
controlling person may incur under the 1933 Act or the 1940 Act, or under
common law or otherwise, arising out of or based upon any untrue statement
of a material fact contained in the registration statement or prospectus
relating to the Company or arising out of or based upon any alleged
omission to state a material fact required to be stated in either thereof
or necessary to make the statements in either thereof not misleading,
except insofar as such claims, demands, liabilities or expenses arise out
of or are based upon any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information in writing provided by the Distributor to the Company for use
in the registration statement or prospectus relating to the Company;
provided, however, that this indemnity agreement, to the extent that it
might require indemnity for liability arising out under the 1933 Act of
any person who is also an officer or director of the Company or who
controls the Company within the meaning of Section 15 of the 1933 Act,
shall not inure to the benefit of such officer, director or controlling
person unless a court of competent jurisdiction shall determine, or it
shall have been determined by controlling precedent, that such result
would not be against public policy as expressed in the 1933 Act; and
further, provided, that in no event shall anything contained herein be so
construed as to protect the Distributor against any liability to the
Company or to its security holders 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 its reckless
disregard of its obligations under this Agreement. The Company's agreement
to indemnify the Distributor, its officers and directors and any such
controlling persons as aforesaid is expressly conditioned upon the Company
being promptly 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 telegram addressed to the Company at its
principal business office. The Company agrees to promptly notify the
Distributor of the commencement of any litigation or proceedings against
it or any of its officers or directors in connection with the issue and
sale of any Shares.
12
The Distributor agrees to indemnify, defend and hold the Company, its
officers and directors and any person who controls the Company, if any,
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 Company, its directors or officers 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 Company, its
directors or officers or such controlling person resulting from such
claims or demands shall arise out of or be based upon any alleged untrue
statement of a material fact contained in information furnished in writing
by the Distributor to the Company for use in the Company's registration
statement or prospectus or shall arise out of or be based upon any alleged
omission to state a material fact in connection with such information not
misleading or shall arise out of or be based on any false or misleading or
allegedly false or misleading sales literature relating to the Company and
prepared by the Distributor. The Distributor's agreement to indemnify the
Company, its directors and officers, and any such controlling person as
aforesaid is expressly conditioned upon the Distributor being promptly
notified of any action brought against the Company, its officers or
directors or any such controlling person, such notification being given to
the Distributor at its principal business office.
11. Compliance With Securities Laws. The Company represents that it is
registered as an open-end diversified management investment company under
the 1940 Act, and agrees that it will comply with all of the provisions of
such Act and of the rules and regulations thereunder. The Company and the
Distributor each agree to comply with all of the applicable terms and
provisions of the 1940 Act, the 1933 Act and, subject to the following
provisions of this paragraph 11, all applicable state securities ("Blue
Sky") laws. The Distributor agrees to comply with all of the applicable
terms and provisions of the Securities Exchange Act of 1934. The Company
will cooperate with the Distributor (to the extent of supplying all
necessary documents, exhibits and information), and will execute and
permit to be filed with the proper public bodies, such applications
(including amendments and renewals thereof), instruments, papers and
exhibits as may be appropriate to enable the Shares to be offered for sale
under the laws of such states as the Distributor shall reasonably
determine, and will cooperate with the Distributor in the presentation of
said applications (including amendments and renewals thereof), to the end
that Shares may be qualified in such states under the respective Blue Sky
laws thereof; provided that the Company shall not be required to amend its
Articles of Incorporation or By-laws to comply with the laws of any state,
to maintain an office in any state, to change the terms of the offering of
Shares in any state from the terms set forth in its registration statement
and prospectus, to qualify as a foreign corporation in any state or to
consent to service of process in any state other than with respect to
claims arising out of Shares. The Distributor will furnish to the Company
any information known to the Distributor which is necessary or desirable
in the preparation of the Company's registration statement and prospectus
and any amendments or supplements thereto.
12. EFFECT ON DISTRIBUTION PLAN OR DISTRIBUTION PLAN AND AGREEMENT. Any
Distribution Plan or Distribution Plan and Agreement in effect on the
effective date of this Agreement which has been adopted in accordance with
Rule 12b-1 under the 1940 Act shall remain in effect and any reference
therein to a Distributing Agreement or other underwriting agreement
between the parties as of any date prior thereto shall be deemed to be a
reference to this Agreement.
13. EFFECTIVE PERIOD; TERMINATION. This Agreement shall become effective for
an initial period of not more than two years from the date of its
execution, and shall continue in full force and effect continuously
thereafter provided that such continuance is approved at least annually as
required by the 1940 Act. This Agreement shall automatically terminate in
the event of its assignment (as defined by the 1940 Act). In addition,
this Agreement may be terminated at any time, without penalty, by either
party on not more than sixty days' nor less than thirty days' written
notice delivered or mailed by registered mail, postage prepaid, to the
other party.
IN WITNESS WHEREOF, Xxxxx Variable Account Fund, Inc. and Xxxxx Distributors,
LLC have caused this instrument to be signed in several counterparts, each of
which shall be an original and which together shall constitute one and the same
Agreement, by an officer or officers thereunto duly authorized, as of the day
and year first above written.
XXXXX VARIABLE ACCOUNT FUND, INC.
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By: Xxxxxx Xxxx, Vice President
XXXXX DISTRIBUTORS, LLC
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By: Xxxxxx Xxxx, Vice President
