Exhibit No. EX-99.e.1
DISTRIBUTION AGREEMENT
BETWEEN
GENWORTH VARIABLE INSURANCE TRUST
AND
CAPITAL BROKERAGE CORPORATION
THIS AGREEMENT entered into the 31st day of July, 2008, by and between
GENWORTH VARIABLE INSURANCE TRUST (the "Trust"), a Delaware statutory trust, on
behalf of each of its separate series of shares (each a "Fund" and collectively,
the "Funds") as set forth on Appendix A hereto, as amended from time to time,
and CAPITAL BROKERAGE CORPORATION (the "Distributor"), a Washington corporation,
and a registered broker-dealer and member of the Financial Industry Regulatory
Authority ("FINRA").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end management
investment company, as defined in the Investment Company Act of 1940, as amended
(the "1940 Act"), and is so registered with the U.S. Securities and Exchange
Commission (the "SEC") under the provisions of the 1940 Act;
WHEREAS, the Trust has adopted a distribution plan in respect to shares of
the Funds pursuant to Rule 12b-1 under the 1940 Act (the "12b-1 Plans");
WHEREAS, the Distributor is engaged in the business of promoting the
distribution of the securities of investment companies;
WHEREAS, Fund shares may be offered and sold at net asset value only to
separate accounts of insurance companies ("Insurance Companies") to fund the
benefits of variable life insurance policies and variable annuity contracts; and
WHEREAS, it is mutually desired that the Distributor undertake as agent of
the Trust, the sale and distribution of shares of the Funds;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto, the parties mutually covenant and agree with each other as
follows:
1. The Trust, on behalf the Funds, hereby appoints the Distributor as agent
of the Funds to effect the sale and public distribution of shares of the capital
stock of each of the Funds. In its capacity as principal underwriter of Fund
shares, and acting as principal and not as agent for the Trust, the Distributor
is authorized, from time to time, to enter into separate written agreements
regarding the sale of Fund shares, on terms and conditions not inconsistent with
this Agreement or the 12b-1 Plans, with Insurance Companies ("Participation
Agreements") and with various eligible financial institutions and other
financial institutions ("eligible financial institutions") which are permitted
by law to offer and sell shares of the Funds to Insurance Companies ("Selling
Agreements"), which provide that any such eligible financial institution shall
indemnify and hold harmless, the Funds so that in no event shall the Funds have
any responsibility or liability to any person whatsoever on account of the acts
and statements of any such eligible financial institution. The Distributor shall
have the right to select the Insurance Companies and eligible financial
institutions to whom shares will be offered by it and, subject to express
provisions of this Agreement, applicable securities laws, the Trust's Agreement
and Declaration of Trust and Bylaws and the then current prospectus(es) of the
Funds, to determine the terms and prices in any contract for the sale of shares
to any eligible financial institution made by it as such agent for each of the
Funds. The Trust shall not pay any compensation pursuant to Participation
Agreements or Selling Agreements; the Distributor shall determine in its sole
discretion the compensation, if any, to be paid by it.
2. The Distributor shall be the principal underwriter and agent for each of
the Funds for the sale of its shares and the Funds agree that they will not sell
any shares to any person except to fill orders for the shares received through
the Distributor. The foregoing exclusive right shall not apply: (a) to shares
issued or sold in connection with the merger or consolidation of any other
investment company with a Fund or the acquisition by purchase or otherwise of
all or substantially all the assets of any investment company or substantially
all the outstanding shares of any such company by a Fund; (b) to shares which
may be offered by a Fund to its shareholders for reinvestment of cash
distributed from capital gains or net investment income of a Fund; (c) to shares
which may be issued to shareholders of other funds who exercise any exchange
privilege set forth in the Funds' prospectus(es), or (d) to the sale of shares
to any person in a transaction which is exempt from registration under the
Securities Act of 1933 (the "1933 Act").
3. The Distributor shall have the right to sell the shares of beneficial
interest of each of the Funds to Insurance Companies and eligible financial
institutions, as needed (making reasonable allowance for clerical errors and
errors of transmission), but not more than the shares needed to fill
unconditional orders for shares placed with the Distributor by Insurance
Companies or eligible financial institutions. In every case the Distributor
shall charge the public offering price and the Funds shall receive the net asset
value for the shares sold, determined as provided in paragraph 4 hereof. The
Distributor shall notify the Funds, or their designated service providers, at
the close of each business day (normally 5:00 p.m., Eastern Standard Time), of
the number of shares sold during each day. Notwithstanding the foregoing, the
Funds may sell their shares to certain affiliated persons at net asset value, if
and to the extent described in the respective prospectus(es).
4. The public offering price consists of the net asset value per share,
unless otherwise stated in the Funds' currently effective prospectus(es). The
net asset value of shares of each of the Funds shall be determined by the Funds
or such other persons as the Board of Trustees of the Trust may designate. The
determination shall be made once a day on which the New York Stock Exchange is
open for a full business day and in accordance with the method set out in the
Bylaws of the Trust and the current prospectus(es) of the Funds.
5. The Distributor agrees that it will not sell any shares of a Fund to any
officer, Trustee, or partner of either the Distributor or of the Trust, any firm
or corporation which may be employed by the Funds or by the Distributor, or for
its own account, except that if the Funds' prospectus(es) is later amended to
permit the sale of Fund shares to persons other than Insurance Companies, the
Distributor may sell to such persons and for its own account for investment
purposes only and that such Fund shares will not be resold except through
redemption by the applicable Fund.
6. (a) On behalf of the Funds, the Trust appoints and designates the
Distributor as agent of the Funds and the Distributor accepts such appointment
as such agent, to repurchase shares of each of the Funds in accordance with the
provisions of the Agreement and Declaration of Trust and Bylaws of the Trust.
(b) In connection with such redemptions or repurchases the Trust authorizes
and designates the Distributor to take any action, to make any adjustments in
net asset value, and to make any arrangements for the payment of the redemption
or repurchase price authorized or permitted to be taken or made in accordance
with the the 1940 Act, and as set forth in the Trust's Bylaws and then current
prospectus(es) of the Funds.
(c) The authority of the Distributor under this paragraph 6 may, with the
consent of the Trust, be delegated by the Trust or redelegated by the
Distributor, in whole or in part to another person or firm, so long as such
delegation by the Distributor is approved by the Trust.
(d) The authority granted in this paragraph 6 may be suspended by the Trust
at any time or from time to time pursuant to the provisions of its Agreement and
Declaration of Trust and By-Laws until further notice to the Distributor. The
President or any Vice President of the Trust shall have the power granted by
said provisions. After any such suspension the authority granted to the
Distributor by this paragraph 6 shall be reinstated only by a written instrument
executed on behalf of the Funds by the Trust's President or any Vice President.
7. The Funds agree that they will cooperate with the Distributor to
prepare, execute and file applications for registration and qualification of its
shares for sale under the laws of the United States and the provisions and
regulations of the SEC and under the Securities Acts of such States and in such
amounts as each of the Funds may determine, and shall pay registration fees in
connection therewith. The Distributor shall bear all expenses incident to the
sale of shares of the Funds, except to the extent that the Insurance Companies
or others pay or agree to pay such expenses, including without limitation, the
cost of any sales material or literature, the cost of copies of the
prospectus(es) used as sales material (except those being sent to existing
shareholders) and the cost of any reports or proxy material originally prepared
for the Funds' shareholders, to the extent that such material is used in
connection with the sale of shares of the Funds.
8. For its services under this Agreement, the Distributor shall be entitled
to receive a selling commission, and /or fees pursuant to any Distribution Plans
pursuant to Rule 12b-1 which may from time to time be in effect with respect to
one or more Funds, as may be stated in the Funds' currently effective
prospectus(es). The Distributor may make payments to others from such amounts in
accordance with any selling agreement, participation agreement, or agreement
pursuant to such Distribution Plan, then in effect.
9. Notwithstanding anything contained herein to the contrary, shares of
each of the Funds may be offered for sale at a price other than their current
public offering price, if such reduction or elimination is authorized by an
order of the SEC, or the 1940 Act or the rules and regulations promulgated
thereunder provide for such variation. Furthermore, such shares may be offered
and sold directly by the Funds rather than by the Distributor as otherwise
provided in this Agreement.
10. This Agreement shall become effective as of the above-written date, and
shall continue in effect for a period of more than one year from its effective
date only as long as such continuance is approved, at least annually, by the
Board of Trustees of the Trust, including a majority of those Trustees who are
not "interested persons" of any party to this Agreement voting in person at a
meeting called for the purpose of voting on such approval.
11. No amendment to this Agreement shall be executed or become effective
unless its terms have been approved (a) by a majority of the Trustees of the
Trust or by the vote of a "majority of the outstanding voting securities" of
each of the Funds, and (b) by a majority of those Trustees who are not
"interested persons" of the Funds or of any party to this Agreement.
12. The Trust, on behalf of the Funds, and the Distributor hereby each
agree that all literature and publicity issued by either of them referring
directly or indirectly to the Funds or to the Distributor shall be submitted to
and receive the approval of the Funds and the Distributor before the same may be
used by either party.
13. The Distributor agrees to use its best efforts in effecting the sale
and public distribution of the shares of each of the Funds and to perform its
duties in redeeming and repurchasing the shares of each of the Funds, but
nothing contained in this Agreement shall make the Distributor or any of its
officers and directors or shareholders liable for any loss sustained by any of
the Funds or any of the Trust's officers, Trustees or shareholders, or by any
other person on account of any act done which is required by this Agreement, or
which is directed by the Trust provided that nothing herein contained shall
protect the Distributor against any liability to the Funds or to any of their
shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith, or negligence in the performance of its duties
as Distributor or by reason of its reckless disregard of its obligations or
duties as Distributor under this Agreement. Nothing in this Agreement shall
protect the Distributor from any liabilities which it may have under the 1933
Act or the 1940 Act.
14. As used in this Agreement the terms "interested persons," "assignment;"
and "majority of the outstanding voting securities" shall have the respective
meanings specified in the 1940 Act.
15. This Agreement may be terminated at any time, without the payment of
any penalty by: (1) the vote of a majority of the Trustees of the Trust on not
less than 30 days nor more than 60 days written notice to the Distributor, or
(2) by the Distributor at any time without the payment of any penalty, on not
less than 30 days nor more than 60 days written notice to the Trust, or (3) by
any party hereto immediately upon written notice to the other parties in the
event of a breach of any provision to this Agreement by any of the parties.
This Agreement shall not be assigned and shall terminate automatically in
the event of its assignment or upon the termination of the Investment Advisory
Agreement.
This Agreement shall extend to and bind the heirs, executors,
administrators and successors of the parties hereto.
16. Subject to the duties of the parties to comply with applicable law,
including any demand of any regulatory or taxing authority having jurisdiction,
the parties hereto shall treat as confidential all information pertaining to a
Fund and the actions of the Distributor, the Trust, and a Fund in respect
thereof. In accordance with Section 248.11 of Regulation S-P (17 CFR
248.1-248.30), Distributor will not directly, or indirectly through an
affiliate, disclose any non-public personal information, except as permitted or
required by law, as defined in Reg. S-P, received from the Trust, regarding any
shareholder, to any person that is not affiliated with the Trust, provided that,
any such information disclosed to an affiliate of the Distributor shall be under
the same limitations on non-disclosure.
17. Any notice, advice or report to be given pursuant to this Agreement
shall be deemed sufficient if delivered or mailed by registered, certified or
overnight mail, postage prepaid addressed by the party giving notice to the
other party at 0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxxxx Xxxx, XX 00000-0000,
the principal business office of both the Trust and the Distributor.
18. This Agreement shall be governed by the internal laws of the
Commonwealth of Virginia, without regard to conflict of law principles;
provided, however that nothing herein shall be construed as being inconsistent
with the 1940 Act. Where the effect of a requirement of the 1940 Act reflected
in any provision of this Agreement is altered by a rule, regulation or order of
the SEC, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
19. This Agreement embodies the entire agreement and understanding between
the parties hereto, and supersedes all prior agreements and understandings
relating to this Agreement's subject matter. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument.
20. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
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IN WITNESS WHEREOF, GENWORTH VARIABLE INSURANCE TRUST, on behalf of each of
its Funds as set forth in Appendix A, and CAPITAL BROKERAGE CORPORATION have
caused this Agreement to be signed by their duly authorized officers and their
corporate seals to be hereunto duly affixed all on the day and year above
written.
Attest: GENWORTH VARIABLE INSURANCE TRUST
/s/Xxxxxx X. Xxxx /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxxxx
Title: VP & Treasurer Title: President
Attest: CAPITAL BROKERAGE CORPORATION
/s/Xxxxx X. Xxxxx /s/Xxxxxxxx X. Stiff
Name: Xxxxx X. Xxxxx Name: Xxxxxxxx X. Stiff
Title: Senior Vice President Title: Senior Vice President
APPENDIX A
Genworth Calamos Growth Fund
Genworth Columbia Mid Cap Value Fund
Genworth Xxxxx NY Venture Fund
Genworth Xxxxx Xxxxx Large Cap Value Fund
Genworth Xxxx Xxxxx Partners Aggressive Growth Fund
Genworth PIMCO StocksPLUS Fund
Genworth Xxxxxx International Capital Opportunities Fund
Genworth Xxxxxxxxx International Value Fund
Genworth Western Asset Management Core Plus Fixed Income Fund
