DISTRIBUTION AGREEMENT
AGREEMENT made this 15th day of December 2005, between USALLIANZ
VARIABLE INSURANCE PRODUCTS TRUST (the "Trust"), having an office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and BISYS FUND SERVICES LIMITED
PARTNERSHIP ("Distributor"), having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Trust is an open-end management investment company,
organized as a Delaware business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
shares of beneficial interest ("Shares") of each series of the Trust, as listed
on Schedule A, and such series as are hereafter created (all of the foregoing
series individually referred to herein as a "Fund" and collectively as the
"Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR.
1.1 Distributor will act as agent of Trust on behalf of each Fund for
the distribution of the Shares covered by the registration statement of Trust
then in effect under the Securities Act of 1933, as amended (the "Securities
Act") and the 1940 Act. As used in this Agreement, the term "registration
statement" shall mean the registration statement of the Trust and any amendments
thereto, then in effect, including Parts A (the Prospectus), B (the Statement of
Additional Information) and C of each registration statement, as filed on Form
N-1A, or any successor thereto, with the Commission, together with any
amendments thereto. The term "Prospectus" shall mean the then-current form of
Prospectus and Statement of Additional Information used by the Funds, in
accordance with the rules of the Commission, for delivery to shareholders and
prospective shareholders after the effective dates of the above-referenced
registration statements, together with any amendments and supplements thereto.
1.2 Distributor may solicit orders for the sale of the Shares and may
undertake such advertising and promotion as it believes reasonable in connection
with such solicitation. The Trust understands that Distributor is now and may in
the future be the distributor of the shares of many other investment companies
or series, including investment companies having investment objectives similar
to those of the Trust. The Trust further understands that shareholders and
potential shareholders in the Trust may invest in shares of such other
investment companies. The Trust agrees that Distributor's duties to other
investment companies shall not be deemed in conflict with its duties to the
Trust under this Section 1.2.
1.3 Distributor may engage in such activities as it deems appropriate
in connection with the promotion and sale of the Shares, which may include
advertising, compensation of underwriters, dealers and sales personnel, the
printing and mailing of Prospectuses to prospective shareholders other than
current shareholders, and the printing and mailing of sales literature.
Distributor may enter into dealer agreements and other selling agreements with
broker-dealers and other intermediaries; provided, however, that Distributor
shall have no obligation to make any payments to any third parties, whether as
finder's fees, compensation or otherwise, unless (i) Distributor has received a
corresponding payment from the applicable Fund's Distribution Plan (as
defined in Section 2 of this Agreement), the Fund's investment adviser (the
"Adviser") or from another source as may be permitted by applicable law, and
(ii) such corresponding payment has been approved by the Trust's Board of
Trustees.
1.4 In its capacity as distributor of the Shares, all activities of
the Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, all applicable rules and regulations promulgated by the Commission
thereunder, and all applicable rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934 (the "Exchange
Act"), including, without limitation, being a member in good standing of the
National Association of Securities Dealers, Inc. and registered as a
broker-dealer under the Exchange Act.
1.5 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions or by abnormal circumstances of any
kind, the Trust's officers may upon reasonable notice instruct the Distributor
to decline to accept any orders for or make any sales of the Shares until such
time as those officers deem it advisable to accept such orders and to make such
sales.
1.6 The Trust agrees to inform the Distributor from time to time of
the states in which the Fund or its administrator has registered or otherwise
qualified shares for sale, and 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
qualification of the Shares for sale in such states as the Distributor may
designate.
1.7 The Trust shall furnish from time to time, for use in connection
with the sale of the Shares, such supplemental information with respect to the
Funds and the Shares as Distributor may reasonably request; and the Trust
warrants that the statements contained in any such supplemental information will
fairly show or represent what they purport to show or represent. The Trust shall
also furnish Distributor upon request with: (a) unaudited semi-annual statements
of the Funds' books and accounts prepared by the Trust, (b) a monthly itemized
list of the securities in the Funds, (c) monthly balance sheets as soon as
practicable after the end of each month, and (d) from time to time such
additional information regarding the financial condition of the Funds as the
Distributor may reasonably request.
1.8 The Trust represents and warrants to Distributor that all
registration statements, and each Prospectus, filed by the Trust with the
Commission under the Securities Act and the 1940 Act shall be prepared in
conformity with requirements of said Acts and rules and regulations of the
Commission thereunder. The registration statement and Prospectus shall contain
all statements required to be stated therein in conformity with said Acts and
the rules and regulations of the Commission thereunder, and all statements of
fact contained in any such registration statement and Prospectus are true and
correct in all material respects. Furthermore, neither any registration
statement nor any Prospectus includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading to a purchaser of the Shares,
provided that the Trust makes no representation to the extent any such untrue
statement or omission was furnished in writing, or omitted from the relevant
writing furnished, as the case may be, to the Trust by the Distributor for use
in the registration statement or in corresponding statements made in the
Prospectus. The foregoing representations and warranties shall continue
throughout the term of this Agreement and be deemed to be of a continuing
nature, applicable to all Shares distributed hereunder. 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
as, in the light of future developments, may, in the opinion of the Trust's
counsel, be necessary or advisable. If the Trust
shall not propose any amendment or amendments and/or supplement or supplements
within 15 days after receipt by the Trust of a written request from Distributor
to do so, Distributor may, at its option, terminate this Agreement. In such
case, the Distributor will be held harmless from, and indemnified by Trust for,
any liability or loss resulting from the failure to implement such amendment.
The Trust shall not file any amendment to any registration statement or
supplement to any Prospectus without giving 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.
1.9 The Trust authorizes the Distributor and dealers to use any
Prospectus in the form furnished by the Trust from time to time in connection
with the sale of the Shares.
1.10 The Distributor may utilize agents in its performance of its
services and, with prior notice to the Trust, appoint in writing other parties
qualified to perform specific administration services reasonably acceptable to
the Trust (individually, a "Sub-Agent") to carry out some or all of its
responsibilities under this Agreement; provided, however, that a Sub-Agent
shall be the agent of the Distributor and not the agent of the Trust, and that
the Distributor shall be fully responsible for the acts of such Sub-Agent and
shall not be relieved of any of its responsibilities hereunder by the
appointment of a Sub-Agent.
1.11 The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or negligence on the Distributor's part in the
performance of its duties, from reckless disregard by the Distributor of its
obligations and duties under this Agreement, or from the Distributor's failure
to comply with laws, rules and regulations applicable to it in connection with
its activities hereunder. The Trust agrees to indemnify, defend and hold
harmless the Distributor, its officers, partners, employees, and any person who
controls the Distributor within the meaning of Section 15 of the Securities Act
(collectively, "Distributor Indemnitees"), from and against any and all claims,
demands, liabilities and expenses (including the reasonable cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) (collectively,
"Claims") which the Distributor Indemnitees may incur under the Securities Act
or under common law or otherwise (a) as the result of the Distributor acting as
distributor of the Funds and entering into selling agreements, participation
agreements, shareholder servicing agreements or similar agreements with
financial intermediaries on behalf of the Trust; (b) arising out of or based
upon (i) any untrue statement, or alleged untrue statement, of a material fact
contained in any registration statement or any Prospectus, (ii) any omission,
or alleged omission, to state a material fact required to be stated in any
registration statement or any Prospectus or necessary to make the statements
therein not misleading, or (iii) any untrue statement, or alleged untrue
statement, of a material fact in any Trust-related advertisement or sales
literature, or any omission, or alleged omission, to state a material fact
required to be stated therein to make the statements therein not misleading, in
either case notwithstanding the exercise of reasonable care in the preparation
or review thereof by the Distributor; or (c) arising out of or based upon the
electronic processing of orders over the internet at the Trust's request;
provided, however, that the Trust's agreement to indemnify the Distributor
Indemnitees pursuant to this Section 1.11 shall not be construed to cover any
Claims (A) pursuant to subsection (b) above to the extent such untrue
statement, alleged untrue statement, omission, or alleged omission, was
furnished in writing, or omitted from the relevant writing furnished, as the
case may be, to the Trust by the Distributor for use in the registration
statement or in corresponding statements made in the Prospectus, advertisement
or sales literature; (B) arising out of or based
upon the willful misfeasance, bad faith or negligence of the Distributor in the
performance of its duties or the Distributor's reckless disregard of its
obligations and duties under this Agreement; or (C) arising out of or based upon
the Distributor's failure to comply with laws, rules and regulations applicable
to it in connection with its activities hereunder.
In the event of a Claim for which the Distributor Indemnitees may be
entitled to indemnification hereunder, the Distributor shall provide the Trust
with written notice of the Claim, identifying the persons against whom such
Claim is brought, promptly following receipt of service of the summons or other
first legal process, and in any event within 10 days of such receipt. The Trust
will be entitled to assume the defense of any suit brought to enforce any such
Claim if such defense shall be conducted by counsel of good standing chosen by
the Trust and approved by the Distributor, which approval shall not be
unreasonably withheld. In the event any such suit is not based solely on an
alleged untrue statement, omission, or wrongful act on the Trust's part, the
Distributor shall have the right to participate in the defense. In the event the
Trust elects to assume the defense of any such suit and retain counsel of good
standing so approved by the Distributor, the Distributor Indemnitees in such
suit shall bear the fees and expenses of any additional counsel retained by any
of them, but in any case where the Trust does not elect to assume the defense of
any such suit or in case the Distributor reasonably withholds approval of
counsel chosen by the Trust, the Trust will reimburse the Distributor
Indemnitees named as defendants in such suit, for the reasonable fees and
expenses of any counsel retained by them to the extent related to a Claim
covered under this Section 1.11. The Trust's indemnification agreement contained
in this Section 1.11 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Distributor
Indemnitees, and shall survive the delivery of any Shares.
1.12 The Distributor agrees to indemnify, defend and hold harmless the
Trust, its officers, Trustees, employees, and any person who controls the Trust
within the meaning of Section 15 of the Securities Act (collectively, "Trust
Indemnitees"), from and against any and all Claims which the Trust Indemnitees
may incur under the Securities Act or under common law or otherwise, arising out
of or based upon (a) any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement, Prospectus, or
Trust-related advertisement or sales literature, or upon any omission, or
alleged omission, to state a material fact in such materials that would be
necessary to make the information therein not misleading, which untrue
statement, alleged untrue statement, omission, or alleged omission, was
furnished in writing, or omitted from the relevant writing furnished, as the
case may be, to the Trust by the Distributor for use in the registration
statement or in corresponding statements made in the Prospectus, or
advertisement or sales literature; (b) the willful misfeasance, bad faith or
negligence of the Distributor in the performance of its duties, or the
Distributor's reckless disregard of its obligations and duties under this
Agreement, or (c) the Distributor's failure to comply with laws, rules and
regulations applicable to it in connection with its activities hereunder (other
than in respect of Trust-related advertisements or sales literature that fails
to comply with applicable laws notwithstanding the exercise of reasonable care
in the preparation and review thereof by the Distributor).
In the event of a Claim for which the Trust Indemnitees may be entitled
to indemnification hereunder, the Trust shall provide the Distributor with
written notice of the Claim, identifying the persons against whom such Claim is
brought, promptly following receipt of service of the summons or other first
legal process, and in any event within ten (10) days of such receipt. The
Distributor will be entitled to assume the defense of any suit brought to
enforce any such Claim if such defense shall be conducted by counsel of good
standing chosen by the Distributor and approved by the Trust, which approval
shall not be unreasonably withheld. In the event any such suit is not based
solely on an alleged untrue statement, omission, or wrongful act on the
Distributor's part, the Trust shall have the right to participate in the
defense. In the event the
Distributor elects to assume the defense of any such suit and retain counsel of
good standing so approved by the Trust, the Trust Indemnitees in such suit shall
bear the fees and expenses of any additional counsel retained by any of them,
but in any case where the Distributor does not elect to assume the defense of
any such suit or in case the Trust reasonably withholds approval of counsel
chosen by the Distributor, the Distributor will reimburse the Trust Indemnitees
named as defendants in such suit, for the reasonable fees and expenses of any
counsel retained by them to the extent related to a Claim covered under this
Section 1.12. The Distributor's indemnification agreement contained in this
Section 1.12 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Trust Indemnitees, and shall
survive the delivery of any Shares.
1.13 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
Securities Act or if and so long as a current Prospectus as required by Section
10(b)(2) of said Securities Act is not on file with the Commission; provided,
however, that: (a) the Distributor will not be obligated to cease offering
shares until it has received from the Trust written notice of such events, and
(b) nothing contained in this Section 1.13 shall in any way restrict or have an
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,
Agreement and Declaration of Trust, or Bylaws.
1.14 The Trust agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) of any request by the 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 Commission of any stop order suspending
the effectiveness of the registration statement or Prospectus then in
effect or the initiation by service of process on the Trust of any
proceeding for that purpose;
(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; and
(d) of any action of the Commission with respect to any amendment to any
registration statement or Prospectus which may from time to time be filed
with the Commission, which could reasonably be expected to have a material
negative impact upon the offering of Shares.
For purposes of this section, informal requests by or acts of the Staff
of the Commission shall not be deemed actions of or requests by the Commission
unless they would reasonably be expected to have a material negative impact upon
the offering of Shares.
1.15 Each party hereto represents to the other that (i) the execution,
delivery and performance of this Agreement are within such party's corporate (or
equivalent) powers and (ii) this Agreement has been duly authorized by such
party and, when executed and delivered, will constitute such party's legal,
valid and binding obligation, enforceable against such party in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
2. FEES.
Attached as Schedule B to this Agreement are all plans of distribution
under Rule 12b-1 under the 1940 Act approved by the Funds and in effect
(collectively, the "Distribution Plan"). The Funds will deliver to Distributor
promptly after any changes thereto updated copies of the Distribution Plan. For
its services under this Agreement, the Distributor shall be compensated as set
forth on Schedule C to this Agreement, and it is contemplated by the parties
that the Adviser shall pay such compensation to the Distributor.
3. SALE AND PAYMENT.
3.1 Shares of a Fund may be subject to a sales load and may be subject
to the imposition of a distribution fee pursuant to the Distribution Plan
referred to above. To the extent that Shares of a Fund are sold at an offering
price which includes a sales load or subject to a contingent deferred sales load
with respect to certain redemptions (either within a single class of Shares or
pursuant to two or more classes of Shares), such Shares shall hereinafter be
referred to collectively as "Load Shares" (and in the case of Shares that are
sold with a front-end sales load, "Front-end Load Shares", or Shares that are
sold subject to a contingent deferred sales load, "CDSL Shares"). Funds that
issue Front-End Load Shares shall hereinafter be referred to collectively as
"Front-End Load Funds." Funds that issue CDSL Shares shall hereinafter be
referred to collectively as "CDSL Funds." Front-end Load Funds and CDSL Funds
may individually or collectively be referred as "Load Funds." Under this
Agreement, the following provisions shall apply with respect to the sale of, and
payment for, Load Shares.
3.2 The Distributor shall have the right to offer Load Shares at their
net asset value and to sell such Load Shares to the public against orders
therefor at the applicable public offering price, as defined in Section 4
hereof. The Distributor shall also have the right to sell Load Shares to dealers
against orders therefor at the public offering price less a concession
determined by the Distributor, which concession shall not exceed the amount of
the sales charge or underwriting discount, if any, referred to in Section 4
below.
3.3 Prior to the time of delivery of any Load Shares by a Load Fund to,
or on the order of, the Distributor, the Distributor shall pay or cause to be
paid to the Load Fund or to its order an amount in New York cleared funds equal
to the applicable net asset value of such Shares. The Distributor may retain so
much of any sales charge or underwriting discount as is not allowed by the
Distributor as a concession to dealers.
4. PUBLIC OFFERING PRICE.
The public offering price of a Share shall be the net asset value of
such Share next determined, plus any applicable sales charge, all as set forth
in the current Prospectus of the relevant Fund. The net asset value of Shares
shall be determined in accordance with the then-current Prospectus of the
relevant Fund.
5. ISSUANCE OF SHARES.
The Trust reserves the right to issue, transfer or sell Load Shares at
net asset values (a) connection with the merger or consolidation of the Trust or
the Load Fund(s) with any other investment company or the acquisition by the
Trust or the Load Fund(s) of all or substantially all of
the assets or of the outstanding Shares of any other investment company; (b) in
connection with a pro rata distribution directly to the holders of Shares in the
nature of a stock dividend or split; (c) upon the exercise of subscription
rights granted to the holders of Shares on a pro rata basis; (d) in connection
with the issuance of Load Shares pursuant to any exchange and reinvestment
privileges described in any then-current Prospectus of the Load Fund; and (e)
otherwise in accordance with any then-current Prospectus of the Load Fund.
6. TERM, DURATION AND TERMINATION.
This Agreement shall become effective with respect to each Fund as of
the date first written above (the "Effective Date") (or, if a particular Fund is
not in existence on such date, on the earlier of the date an amendment to
Schedule A to this Agreement relating to that Fund is executed or the
Distributor begins providing services under this Agreement with respect to such
Fund) and, unless sooner terminated as provided herein, shall continue for a two
year period following the Effective Date. Thereafter, if not terminated, this
Agreement shall continue with respect to a particular Fund automatically for
successive one-year terms, provided that such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Trust's Board of Trustees who are not parties to this Agreement or interested
persons of any such party, cast in person at a meeting for the purpose of voting
on such approval and (b) by the vote of the Trust's Board of Trustees or the
vote of a majority of the outstanding voting securities of such Fund. This
Agreement is terminable without penalty with 60 days' prior written notice, by
the Trust's Board of Trustees, by vote of a majority of the outstanding voting
securities of the Trust, or by the Distributor. This Agreement will also
terminate automatically in the event of its assignment. (As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested persons" and "assignment" shall have the same meaning as ascribed to
such terms in the 1940 Act.)
7. PRIVACY.
Nonpublic personal financial information relating to consumers or
customers of the Funds provided by, or at the direction of, the Trust to the
Distributor, or collected or retained by the Distributor to perform its duties
as distributor, shall be considered confidential information. The Distributor
shall not disclose or otherwise use any nonpublic personal financial information
relating to present or former shareholders of the Funds other than for the
purposes for which that information was disclosed to the Distributor, including
use under an exception in Rules 13, 14 or 15 of Securities and Exchange
Commission Regulation S-P in the ordinary course of business to carry out those
purposes. The Distributor shall have in place and maintain physical, electronic
and procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of, records and information relating to consumers and customers of the Funds.
The Trust represents to the Distributor that it has adopted a Statement of its
privacy policies and practices as required by Securities and Exchange Commission
Regulation S-P and agrees to provide the Distributor with a copy of that
statement annually.
8. ANTI-MONEY LAUNDERING COMPLIANCE.
8.1 Each of Distributor and the Trust acknowledges that it is a
financial institution subject to the USA Patriot Act of 2001 and the Bank
Secrecy Act (collectively, the "AML Acts"), which require, among other things,
that financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in compliance
with and will continue to comply with the AML Acts and applicable regulations in
all relevant respects. The Distributor shall also provide written notice to each
person or entity with which it entered an
agreement prior to the date hereof with respect to sale of the Trust's Shares,
such notice informing such person of anti-money laundering compliance
obligations applicable to financial institutions under applicable laws and,
consequently, under applicable contractual provisions requiring compliance with
laws.
8.2 The Distributor shall include specific contractual provisions
regarding anti-money laundering compliance obligations in agreements entered
into by the Distributor with any dealer that is authorized to effect
transactions in Shares of the Trust.
8.3 Each of Distributor and the Trust agrees that it will take such
further steps, and cooperate with the other as may be reasonably necessary, to
facilitate compliance with the AML Acts, including but not limited to the
provision of copies of its written procedures, policies and controls related
thereto ("AML Operations"). Distributor undertakes that it will grant to the
Trust, the Trust's anti-money laundering compliance officer and regulatory
agencies, reasonable access to copies of Distributor's AML Operations, books and
records pertaining to the Trust only. It is expressly understood and agreed that
the Trust and the Trust's compliance officer shall have no access to any of
Distributor's AML Operations, books or records pertaining to other clients of
Distributor.
9. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇, with a copy to H. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, Senior Counsel, Corporate Legal, Allianz Life Insurance Company of North
America, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and if to Distributor,
to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Broker
Dealer Chief Compliance Officer, with a copy to BISYS Distribution Services,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: President, or at such other
address as such party may from time to time specify in writing to the other
party pursuant to this Section.
10. CONFIDENTIALITY.
During the term of this Agreement, the Distributor and the Trust may
have access to confidential information relating to such matters as either
party's business, trade secrets, systems, procedures, manuals, products,
contracts, personnel, and clients. As used in this Agreement, "Confidential
Information" means information belonging to the Distributor or the Trust which
is of value to such party and the disclosure of which could result in a
competitive or other disadvantage to either party, including, without
limitation, financial information, business practices and policies, know-how,
trade secrets, market or sales information or plans, customer lists, business
plans, and all provisions of this Agreement. Confidential Information includes
information developed by either party in the course of engaging in the
activities provided for in this Agreement, unless: (i) the information is or
becomes publicly known without breach of this Agreement, (ii) the information is
disclosed to the other party by a third party not under an obligation of
confidentiality to the party whose Confidential Information is at issue of which
the party receiving the information should reasonably be aware, or (iii) the
information is independently developed by a party without reference to the
other's Confidential Information. Each party will protect the other's
Confidential Information with at least the same degree of care it uses with
respect to its own Confidential Information, and will not use the other party's
Confidential Information other than in connection with its duties and
obligations hereunder. Notwithstanding the foregoing, a party may disclose the
other's Confidential Information if (i) required by law, regulation or legal
process or if requested by any duly constituted authority; (ii) it is advised by
counsel that it may incur liability for failure to make such disclosure; (iii)
requested to by the other party; provided that in the event of (i) or (ii) the
disclosing party shall give the other party reasonable prior notice of such
disclosure to the extent reasonably practicably and cooperate with the other
party (at such other party's expense) in any efforts to prevent such disclosure.
10. GOVERNING LAW .
This Agreement shall be construed in accordance with the laws of the
State of New York and the applicable provisions of the 1940 Act.
11. PRIOR AGREEMENTS.
This Agreement constitutes the complete agreement of the parties as to
the subject matter covered by this Agreement, and supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered by this Agreement.
12. AMENDMENTS.
No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto.
13. MATTERS RELATING TO THE TRUST AS A DELAWARE BUSINESS TRUST.
It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust. The execution and delivery of this Agreement have been
authorized by the Trustees, and this Agreement has been signed and delivered by
an authorized officer of the Trust, acting as such, and neither such
authorization by the Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on them personally, but shall bind only the trust property of the
Trust as provided in the Trust's Declaration of Trust.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
written above.
USALLIANZ VARIABLE INSURANCE PRODUCTS TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
BISYS FUND SERVICES, LIMITED
PARTNERSHIP
By: BISYS Fun Services, Inc., its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SCHEDULE A
FUNDS
USAZ ▇▇▇ ▇▇▇▇▇▇ Aggressive Growth Fund
USAZ ▇▇▇ ▇▇▇▇▇▇ Mid Cap Growth Fund
USAZ ▇▇▇ ▇▇▇▇▇▇ Equity and Income
USAZ ▇▇▇ ▇▇▇▇▇▇ Emerging Growth Fund
USAZ ▇▇▇ ▇▇▇▇▇▇ Global Franchise Fund
USAZ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Fund
USAZ ▇▇▇ ▇▇▇▇▇▇ Growth and Income Fund
USAZ AIM Basic Value Fund
USAZ AIM International Equity Fund
USAZ ▇▇▇▇▇▇▇▇▇▇▇ Emerging Growth Fund
USAZ ▇▇▇▇▇▇▇▇▇▇▇ Emerging Technologies Fund
USAZ ▇▇▇▇▇▇▇▇▇▇▇ Global Fund
USAZ ▇▇▇▇▇▇▇▇▇▇▇ International Growth Fund
USAZ ▇▇▇▇▇▇▇▇▇▇▇ Main Street Fund
USAZ OPCAP Renaissance Fund
USAZ OPCAP Value Fund
USAZ Salomon Brothers Large Cap Growth Fund
USAZ Salomon Brothers Small Cap Growth Fund
USAZ Money Market Fund
USAZ ▇▇▇▇▇ NY Venture Fund
USAZ Dreyfus Founders Equity Growth Fund
USAZ Dreyfus Premier Small Cap Value Fund
USAZ Franklin Small Cap Value Fund
USAZ ▇▇▇▇▇▇▇▇ 20/20 Focus Fund
USAZ ▇▇▇▇▇▇▇▇ Growth Fund
USAZ ▇▇▇▇ ▇▇▇▇▇ Growth Fund
USAZ ▇▇▇▇ ▇▇▇▇▇ Value Fund
SCHEDULE B
DISTRIBUTION PLAN
FOR THE
USALLIANZ VARIABLE INSURANCE PRODUCTS TRUST
This DISTRIBUTION PLAN (the "Plan") has been adopted pursuant to
Rule 12b-1 under the Investment Company Act of 1940, as amended (the "1940 Act")
by USALLIANZ VARIABLE INSURANCE PRODUCTS TRUST, a Delaware business trust (the
"Trust"), individually and/or on behalf of its portfolios as set forth on
EXHIBIT A attached hereto (each a "Fund").
SECTION 1. This Plan is adopted pursuant to Rule 12b-1 under the
1940 Act so as to allow the Trust to make payments as contemplated herein in
conjunction with the distribution of shares of each Fund ("Shares").
SECTION 2. This Plan is designed to finance any activity which is
principally intended to result in the marketing or sale of Shares including,
without limitation, expenditures consisting of payments to a principal
underwriter of the Fund ("Distributor") or others for services provided or to be
provided. Amounts received by the Distributor and others may, additionally, be
used to cover certain other costs and expenses related to the distribution of
Shares and provision of service to Fund shareholders, including (i) advertising
by radio, television, newspapers, magazines, brochures, sales literature, direct
mail or any other form of advertising; (ii) expenses of sales employees or
agents of the Distributor, including salary, commissions, travel and related
expenses; (iii) costs of printing prospectuses and other materials to be given
or sent to prospective investors; and (iv) such other similar services as the
Trustees determine to be reasonably calculated to result in the sale of Shares.
SECTION 3. The maximum amount which each Fund may pay directly or
reimburse to the Distributor or others pursuant to Section 2 hereto shall be
such amount, expressed as a percentage of the Fund's average daily net assets
attributable to Shares of the Fund as set forth on EXHIBIT A attached hereto.
Appropriate adjustments shall be made to the payments made pursuant to Section 2
to the extent necessary to ensure that no payment is made with respect to the
Shares of the Fund in excess of the applicable limit imposed on asset based,
front end and deferred sales charges under subsection (d) of Rule 2830 of the
Conduct Rules of the National Association of Securities Dealers, Inc.
SECTION 4. This Plan shall not take effect until it has been
approved together with any related agreements by votes of a majority of both (a)
the Board of Trustees of the Trust and (b) those Trustees of the Trust who are
not "interested persons" of the Trust (as defined in the ▇▇▇▇ ▇▇▇) and who have
no direct or indirect financial interest in the operation of this Plan or any
related agreement ("Plan Trustees"), cast in person at a meeting called for the
purpose of voting on this Plan or such agreements.
SECTION 5. Unless sooner terminated pursuant to Section 7, this
Plan shall continue in effect for a period of one year from the date it takes
effect and thereafter shall
continue in effect so long as such continuance is specifically approved at least
annually in the manner provided for approval of this Plan in Section 4.
SECTION 6. Any person authorized to direct the disposition of
monies paid or payable by the Trust on behalf of each Fund pursuant to this Plan
or any related agreement shall provide to the Trust's Board of Trustees and the
Board shall review at least quarterly a written report of the amounts so
expended and the purposes for which such expenditures were made,
SECTION 7. This Plan may be terminated at any time with respect to
any Fund by vote of a majority of the Plan Trustees or by vote of a majority of
such Fund's outstanding Shares.
SECTION 8. Any agreement of the Fund related to this Plan shall be
in writing and shall provide: (a) that such agreement may be terminated at any
time, without payment of any penalty, by vote of a majority of the Plan Trustees
or by a vote of a majority of such Fund's outstanding Shares on not more than
sixty days written notice to any other party to the agreement; and (b) that such
agreement shall terminate automatically in the event of its assignment.
SECTION 9. This Plan may not be amended to increase materially the
amount of distribution expenses provided for in Section 3 hereof unless such
amendment is approved by a vote of at least a majority (as defined in the ▇▇▇▇
▇▇▇) of each Fund's outstanding Shares, and no material amendment to this Plan
shall be made unless approved in the manner provided for in Section 4 hereof.
SECTION 10. While this Plan shall be in effect, the selection and
nomination of the Trustees of the Trust shall be committed to the discretion of
the Trustees who are not "interested persons" of the Trust.
Effective Date: October 27, 1999
EXHIBIT A
USALLIANZ VARIABLE INSURANCE PRODUCTS TRUST PORTFOLIOS
Diversified
Assets Fund
Fixed Income
Fund
Global Opportunities
Fund Growth Fund
Money Market Fund
FEES
0.25% per annum of the Fund's average daily net assets attributable to Shares of
the Fund
SCHEDULE C
COMPENSATION OF THE DISTRIBUTOR
1. BASIC DISTRIBUTION SERVICES. For providing the distribution entity and
related infrastructure and platform, including requisite registrations and
qualifications, premises, personnel, compliance, ordinary fund board meeting
preparation, maintenance of selling agreements, clearance of advertising and
sales literature with regulators, filing appropriate documentation for advisory
representatives to qualify as registered representatives of the Distributor
(provided that the Adviser is solely responsible for its representatives'
meeting examination requirements) and their related registrations and fees,
ordinary supervisory services, overhead, Financial Research Corporation's MUTUAL
FUND VIEWS ON THE NEWS and MONITOR publications, and return on investment, the
Distributor shall receive an annual fee of $22,500, billed monthly.
2. SPECIAL CONDUIT SITUATIONS. If the Distribution Plan, or any other Fund plans
of distribution under Rule 12b-l that contemplate up front and/or recurring
commission and/or service payments to broker dealers, retirement plan
administrators or others by the Distributor with respect to back-end loads,
level loads, or otherwise, unless expressly agreed otherwise in writing between
the parties, all such payments shall be made to the Distributor, which shall act
as a conduit for making such payments to such broker-dealers, retirement plan
administrators or others.
