EXHIBIT 5(b)
DISTRIBUTION AGREEMENT
Between
NORTH AMERICAN FUNDS VARIABLE PRODUCT SERIES II
and
THE VARIABLE ANNUITY MARKETING COMPANY
THIS AGREEMENT made this 29th day of August, 2001, by and between NORTH
AMERICAN FUNDS VARIABLE PRODUCT SERIES II, a Delaware business trust, hereafter
referred to as the "Fund" and THE VARIABLE ANNUITY MARKETING COMPANY, a Texas
corporation hereafter referred to as the "Distributor."
THE FUND AND THE DISTRIBUTOR RECOGNIZE THE FOLLOWING:
1. The Fund is registered as a diversified, open-end management investment
company under the Investment Company Act of 1940 (the "1940 Act"). The
Fund consists of a number of investment portfolios, as may now exist
and may hereinafter be established ("Portfolios"). The Fund intends to
continuously offer the shares of its various Portfolios for sale to The
Variable Annuity Life Insurance Company Separate Account A, other
separate accounts of VALIC, separate accounts of life insurance
companies that are affiliated with VALIC, employee thrift plans
maintained by VALIC or its affiliates, separate accounts of life
insurance companies that are not affiliated with VALIC and, subject to
applicable law, the public (all eligible purchasers of such shares
being referred to collectively as the "Purchasers"). The Fund also
intends that the Purchasers may provide certain beneficial ownership
rights to individuals under variable annuity and variable life
insurance contracts, employee thrift plans or other such arrangements
(such individuals together with any Purchasers who retain all
beneficial ownership rights being referred to collectively as the
"Participants"). The Fund may suspend sales of the shares of any one or
more Portfolios at any time, and may resume sales of any such
Portfolio(s) at a later date.
2. The Distributor is registered as a broker-dealer under the Securities
Exchange Act of 1934 and is currently a member of the National
Association of Securities Dealers, Inc. (the "NASD").
THE FUND AND THE DISTRIBUTOR AGREE AS FOLLOWS:
1. The Fund hereby appoints the Distributor as principal underwriter and
distributor to sell to the Purchasers the shares of the Portfolios
(hereinafter "its shares" or "the Fund's shares"). The appointment of
the Distributor hereunder shall not preclude the Fund from selling its
shares directly to the Purchasers.
2. The Distributor accepts such appointment. The Distributor shall offer
the Fund's shares only on the terms set forth in the Fund's then
current registration statement or related prospectus.
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3. The Fund has no load or redemption charge and the Distributor will
receive no compensation for acting in such capacity. Notwithstanding
this, the Distributor assumes and will pay, from its own resources, all
expenses related to distribution of the Fund's shares and will bear all
other costs and expenses attributable to any activity primarily
intended to result in the sale of shares.
4. Allocation of Expenses.
(a) The Fund will pay (or will enter into arrangements providing
that persons other than the Fund will pay) for all expenses of
the offering of its shares incurred in connection with:
(1) The registration of the Fund or the registration or
qualification of the Fund's shares for offer or sale
under the federal securities laws and the securities
laws of any state or other jurisdiction in which the
Distributor may arrange for the sale of the Fund's
shares; and
(2) The printing and distribution of the Fund's
prospectuses to existing Participants as may be
required under the federal securities laws and the
applicable securities laws of any state or other
jurisdiction; and
(3) The preparation, printing and distribution of any
proxy statements, notices and reports, and the
performance of any acts required to be performed by
the Fund by and under the federal securities laws and
the applicable securities laws of any state or other
jurisdiction; and
(4) The issuance of the Fund's shares, including any
share issue and transfer taxes.
(b) The Distributor will pay from its own resources (or will enter
into arrangements providing that persons other than the
Distributor or the Fund shall pay), or promptly reimburse the
Fund, for all expenses in connection with:
(1) The printing and distribution of the Fund's
prospectuses utilized in the marketing of the
Portfolios to eligible Purchasers;
(2) The preparation, printing and distribution of
advertising and sales literature for use in the
offering of the Fund's shares and printing and
distribution of reports to Purchasers and/or
Participants used as sales literature;
(3) The qualification of the Distributor as a distributor
or broker or dealer under any applicable federal or
state securities laws;
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(4) Any investment program of the Fund, including the
reinvestment of dividends and capital gains
distributions, to the extent such expenses exceed the
Fund's normal costs of issuing its shares; and
(5) All other expenses in connection with offering for
sale and sale of the Fund's shares which have not
been herein specifically allocated to the Fund.
5. Duties of the Distributor.
(a) The Distributor shall devote reasonable time and effort to
effect sales of the Fund's shares, but it shall not be
obligated to sell any specific number of shares.
(b) The Distributor shall use its best efforts in all respects
duly to conform with the requirements of all federal and state
laws and regulations and the regulations of the NASD, in
relating to the sale of such securities. Neither the
Distributor nor any other person is authorized by the Fund to
give any information or to make any representations, other
than those contained in the Fund's then current registration
statement or related prospectus and any sales literature
authorized by responsible officers of the Distributor.
(c) The Distributor shall act as an independent contractor and
nothing herein contained shall constitute the Distributor, its
agents or representatives, or any employees thereof as
employees of the Fund in connection with the sale of the
Fund's shares.
The Distributor is responsible for its own conduct and the
employment, control and conduct of its agents and employees
and for injury to such agents or employees or to others
through its agents or employees. The Distributor assumes full
responsibility for its agents and employees under applicable
statutes and agrees to pay all employer taxes thereunder.
6. Sale and Redemption of the Fund's Shares
(a) Orders for the purchase and redemption of the Fund's shares
(and payment for the Fund's shares, in the case of a purchase)
shall be transmitted directly from the Purchaser to the Fund
or its agent.
(b) The Fund shall have the right to suspend the redemption of the
Fund's shares pursuant to the conditions set forth in the
Fund's then current registration statement or related
prospectus. The Fund shall also have the right to suspend the
sale of the Fund's shares at any time.
(c) The Fund will give the Distributor prompt notice of any such
suspension and shall promptly furnish such other information
in connection with the sale and redemption of the Fund's
shares as the Distributor reasonably requests.
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(d) The Fund (or its agent) will make appropriate book entries
upon receipt by the Fund (or its agent) of orders and payments
for the Fund's shares or requests for redemption thereof, and
will issue and redeem the Fund's shares and confirm such
transactions in accordance with applicable laws and
regulations.
7. Indemnification.
The Distributor agrees to indemnify, defend and hold the Fund,
its officers and trustees (or former officers and trustees)
and any person who controls the Fund within the meaning of
Section 15 of the Securities Act of 1933 (the "1933 Act")
(collectively, "Indemnities") 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) incurred by any Indemnitee under the
1933 Act or under common law or otherwise, which arise out of
or are based upon (1) any untrue or alleged untrue statement
of a material fact or omission or alleged omission of a
material fact in information furnished by the Distributor to
the Fund's registration statement or related prospectus, (2)
any misrepresentation or omission or alleged misrepresentation
or omission to state a material fact on the part of the
Distributor or any agent or employee of the Distributor or any
other person for whose acts the Distributor is responsible or
is alleged to be responsible, unless such misrepresentation or
omission or alleged misrepresentation or omission was made in
reliance on written information furnished by the Fund, or (3)
the willful misconduct or failure to exercise reasonable care
and diligence on the part of any such persons with respect to
services rendered under this Agreement. The foregoing rights
of indemnification shall be in addition to any other rights to
which any Indemnitee may be entitled as a matter of law. The
Fund agrees promptly to notify the Distributor of any action
brought against any Indemnitee, such notification being given
to the Distributor by letter or telegram addressed to the
Distributor at its principal business office, and the
Distributor's agreement to indemnify the Indemnities pursuant
to this paragraph is expressly conditioned upon such
notification.
The Fund agrees to indemnify, defend and hold the Distributor,
its officers and trustees (or former officers and trustees)
and any person who controls the Distributor within the meaning
of Section 15 of the 1933 Act (collectively, "Indemnities")
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)
incurred by any Indemnitee under the 1933 Act or under common
law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the Fund's
registration statement or related prospectus arising out of or
based upon any alleged omission to state a material fact
required to be stated or necessary to make the Fund's
registration statement or related prospectus not misleading,
provided that in no event shall anything contained in this
Agreement be construed so as to protect the Distributor
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against any liability to the Fund, the Purchasers or the
Participants 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 and duties under
this Agreement, and further provided that the Fund shall not
indemnify the Distributor for any claims, demands, liabilities
and expenses arising out of or based upon any alleged untrue
statement of a material fact or omission to state a material
fact in information furnished by the Distributor to the Fund's
registration statement or related prospectus.
8. This Agreement is effective as of August 29, 2001, and shall
continue in force from year-to-year thereafter, provided that
such continuance for more than two years is specifically
approved at least annually (a)(I) by the Board of Trustees of
the Fund, or (ii) by vote of a majority of the Fund's
outstanding voting securities (as defined in Section 2(a)(42)
of the 1940 Act), and (b) by the affirmative vote of a
majority of the Trustees who are not interested persons (as
defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) of the Fund by
votes cast in person at a meeting called for such purpose.
9. (a) This Agreement may be terminated at any time, without
penalty, by a vote of the Board of Trustees of the
Fund or by a vote of a majority of the outstanding
voting securities of the Fund, or by the Distributor,
on sixty (60) days' written notice to the other
party.
(b) This Agreement shall automatically terminate in the
event of its assignment, as defined in Section
2(a)(4) of the 1940 Act.
10. Notwithstanding anything to the contrary contained in this
Agreement, the Fund acknowledges and agrees that, as provided
by Section 8.1 of the Fund's Agreement and Declaration of
Trust, this Agreement is executed on behalf of the Fund or the
Trustees of the Fund as Trustees and not individually and that
the obligations of this Agreement are not binding upon any of
the Trustees, Officers, Purchasers or Participants
individually, but are binding only upon the assets and
property of the Fund. A Certificate of Trust in respect of the
Fund is on file with the Secretary of the State of Delaware.
11. Each party shall mail (postage paid) or deliver, in writing,
all notices to the other party, at an address designated for
this purpose by the other party. Until changed, this address
for both parties is: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
12. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, THE LAWS OF THE STATE OF TEXAS WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICT OF LAWS.
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IN WITNESS WHEREOF, the parties hereto execute this Agreement on the
date above.
NORTH AMERICAN FUNDS VARIABLE PRODUCT SERIES II
on behalf of the Portfolios:
By:
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Name:
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Title:
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ATTEST:
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Name:
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Title:
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THE VARIABLE ANNUITY MARKETING COMPANY
By:
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Name:
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Title:
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Name:
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Title:
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