EXHIBIT (6)(a)
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Form of Distribution Agreement
between Transamerica Investors, Inc.
and Transamerica Securities Sales Corporation
TRANSAMERICA INVESTORS, INC.
DISTRIBUTION AGREEMENT
August 4, 1995
THIS AGREEMENT is made and entered into this _____ day of __________,
1995, by and between TRANSAMERICA INVESTORS, INC., a corporation organized and
existing under the laws of the state of Maryland (the "Corporation"), and
TRANSAMERICA SECURITIES SALES CORPORATION, a corporation organized and existing
under the laws of the State of Maryland (the "Distributor").
WHEREAS, the Corporation is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), consisting of several portfolios of shares (the "Funds");
WHEREAS, the Corporation is registering the shares of its common stock
for offer and sale to the public under the Securities Act of 1933, as amended
(the "1933 Act"), and in accordance with the provisions of all applicable state
securities laws (the "Blue Sky Laws");
WHEREAS, each Fund is authorized to issue two classes of shares:
Investor Shares and Adviser Shares (collectively, the "Shares"), each of which
represents interests in the same portfolio of investment securities;
WHEREAS, the Distributor is a broker-dealer registered with the
Securities and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and is a member of the
National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Corporation has adopted twelve distribution plans pursuant
to Section 12(b) of the 1940 Act, and Rule 12b-1 thereunder (the "12b-1
Plans"), pursuant to which the Corporation may pay the expenses for certain
Distribution Activities and Service Activities (as defined in the 12b-1 Plans)
incurred or paid by the Distributor;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
I. APPOINTMENT AND OBLIGATIONS OF THE DISTRIBUTOR
The Corporation hereby appoints the Distributor as its exclusive agent to
sell and distribute, as set forth below in Section II, the Shares of each class
of each Fund and of such other Funds and classes of Shares of the Funds as may
hereafter be registered with the Commission and under the Blue Sky Laws, subject
to the terms of this Agreement and the policies and control of the Corporation's
Board of Directors (the "Board"). The Distributor hereby accepts such
appointment.
II. DUTIES OF THE DISTRIBUTOR AND THE CORPORATION
The Corporation employs the Distributor:
A. to promote the Funds;
B. to sell the Shares of each Fund on a best efforts basis from time to
time during the term of this Agreement as agent for the Corporation
and upon the terms described in the currently effective registration
statement of the Corporation, and supplements thereto, under the
1933 Act and the 1940 Act (the "Registration Statement"). The
Distributor shall sell, as agent for the Funds, the Shares needed,
but not more than the Shares needed (except for clerical errors or
errors of transmission), to fill unconditional orders placed with
the Distributor;
C. to enter into agreements, at the Distributor's discretion, to sell
Shares to such registered and qualified retail broker-dealers,
including Transamerica Financial Resources, Inc. ("TFR"), subject to
the approval of the Board. All such brokers and dealers shall act in
accordance with the Registration Statement and shall comply with all
applicable laws, rules and regulations;
D. in connection with the sales and offers of sale of Shares, to give
only such information and make such representations as is permitted
by applicable law. All sales literature and advertisements used by
the Distributor in connection with the sale of the Shares shall be
filed with the appropriate authorities, including the NASD, the
states, and/or the Commission, as may be required from time to time.
The Corporation shall not be responsible in any way for any other
information, statements or representations given or made by the
Distributor or its representatives or agents. Normally, the
Corporation will not exercise any direction or control over the time
and place of solicitation, the persons to be solicited, or the
manner of solicitation. But the Distributor agrees that
solicitations will be in a form acceptable to the Corporation and
will be subject
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to such terms and conditions as may be prescribed from time to time
by the Board;
E. to offer the Shares of each Fund at the public offering price which
shall be the net asset value per Share as next determined by the
Corporation following receipt and acceptance by the Corporation of a
proper offer to purchase, determined in accordance with the articles
of incorporation, bylaws and Registration Statement of the Funds.
The Corporation shall promptly furnish (or arrange for another
person to furnish) the Distributor with a quotation of the public
offering price on each business day; and
The Distributor shall not be obligated to sell any certain number of
Shares.
The Corporation agrees:
A. that it will not, without the Distributor's consent, sell or agree
to sell any Shares of the Corporation other than through the
Distributor, except that the Corporation may:
1. issue or sell Shares in connection with its merger or
consolidation with any other investment company or the
Corporation's acquisition by purchase or otherwise of all or
substantially all of the assets of any investment company or
substantially all of the outstanding shares of any such
company;
2. offer Shares to its shareholders for reinvestment of cash
distribution from capital gains or net investment income of the
Corporation;
3. issue Shares to shareholders of a Fund who exercise any
exchange privilege set forth in the Registration Statement;
4. issue Shares directly to registered shareholders pursuant to
the authority of the Board; or
5. sell Shares in any jurisdiction in which the Distributor is not
registered as a broker-dealer.
B. to permit the Distributor to use any list of shareholders of the
Corporation or any Fund or any other list of investors which it
obtains in connection with its provision of services under this
Agreement;
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C. to keep the Distributor fully informed of its affairs and to make
available to the Distributor copies of all information, financial
statements, and other papers which the Distributor may reasonably
request for use in connection with the distribution of Shares,
including, without limitation, certified copies of any financial
statements for the Corporation by its independent public accountant
and such reasonable number of copies of the most current prospectus,
statement of additional information, and annual and interim reports
of a Fund as the Distributor may request;
D. to cooperate fully in the efforts of the Distributor to sell and
arrange for the sale of the Shares and in the performance of the
Distributor under this Agreement; and
E. to register or cause to be registered all Shares sold by the
Distributor pursuant to the provisions of this Agreement in such
name or names and amounts as the Distributor may request from time
to time.
The Corporation reserves the right at any time to withdraw all offerings
of the Shares of any or all Funds by written notice to the Distributor at its
principal office.
The Corporation and the Distributor hereby agree that all advertisements
and sales literature issued by either of them referring directly or indirectly
to the Corporation or to the Distributor will be submitted to and receive the
approval of the Corporation and the Distributor before it may be used by either
party.
III. REPRESENTATIONS AND WARRANTIES
A. REPRESENTATIONS AND WARRANTIES OF THE DISTRIBUTOR
The Distributor hereby represents and warrants to the Corporation as
follows:
1. Due Incorporation and Organization. The Distributor is duly
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organized and is in good standing under the laws of the State
of Maryland and is fully authorized to enter into this
Agreement and carry out its terms.
2. Registration. The Distributor is a broker-dealer registered
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with the Commission under the 1934 Act, is a member of the
NASD, and is registered or licensed under the laws of all
jurisdictions in which its activities require it to be so
registered or licensed. The Distributor shall maintain such
registration or license in effect at all times during the term
of this Agreement and will immediately notify the Corporation
of the
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occurrence of any event that would disqualify the Distributor
from serving as a Distributor by operation of Section 9(a) of
the 1940 Act or otherwise.
3. Best Efforts. The Distributor at all times shall provide its
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best judgement and effort to the Corporation in carrying out
its obligations hereunder.
4. Code of Ethics. The Distributor has adopted a written code of
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ethics that complies with the requirements of Rule 17j-1 under
the 1940 Act and will provide the Corporation with a copy of
such code of ethics and all subsequent modifications, together
with evidence of its adoption. At least annually the
Distributor will provide the Corporation with a report
describing the implementation of the code of ethics during the
immediately preceding twelve (12) month period.
B. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation, on behalf of the Funds, hereby represents and warrants
to the Distributor as follows:
1. Due Incorporation and Organization. The Corporation is duly
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organized under the laws of the State of Maryland and is fully
authorized to enter into this Agreement and carry out its
terms.
2. Registration. The Corporation is registered as an investment
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company with the Commission under the 1940 Act and Shares of
the Corporation will be registered for offer and sale to the
public under the 1933 Act and under the Blue Sky Laws. Such
registrations shall be kept in effect during the term of this
Agreement.
IV. COMPLIANCE WITH APPLICABLE REQUIREMENTS
In carrying out its obligations under this Agreement, the Distributor
shall at all times conform to:
A. all applicable provisions of the 1934 Act and the 1940 Act and the
rules and regulations thereunder;
B. the provisions of the Registration Statement of the Corporation as
the same may be amended from time to time, under the 1933 Act and
the 1940 Act;
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C. the provisions of the Corporation's Articles of Incorporation, as
amended;
D. the provisions of the By-Laws of the Corporation, as amended; and
E. any other applicable provisions of state and federal law.
V. COMPENSATION
As compensation for providing services under this Agreement, the
Distributor shall receive from each class of each Fund a distribution and/or
service fee at the rate and under the terms and conditions of the 12b-l Plans,
adopted by the Corporation with respect to such classes of the Funds (which are
attached hereto), as such 12b-l Plans are in effect from time to time, and
subject to any further limitations on such fee as the Board of Directors of the
Corporation may impose.
Additional payments to the Distributor from the Corporation's investment
adviser, Transamerica Investment Services, Inc., or the Corporation's
administrator, Transamerica Occidental Life Insurance Company, may be authorized
in accordance with applicable law.
VI. EXPENSES
The expenses in connection with the distribution of the Funds shall be
allocable as follows:
A. EXPENSES OF THE DISTRIBUTOR
The Distributor shall pay:
1. the costs of printing and distributing prospectuses and
statements of additional information for prospective investors
and the costs of preparing, printing and distributing such
other sales literature, reports, forms and advertisements in
connection with the sale of the Shares as comply with the
applicable provisions of federal and state law;
2. the costs of any additional copies of the Corporation's
financial and other reports and other literature supplied to
the Distributor for sales promotion purposes;
3. all advertising expenses incurred by the Distributor in
connection with the offering and sales of the Shares;
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4. all compensation to the employees of the Distributor and others
for selling Shares, and all expenses of the Distributor and
others who engage in or support the sale of Shares as may be
incurred in connection with their sales efforts;
5. expenses relating to the formulation and implementation of
marketing strategies and promotional activities such as direct
mail promotions and television, radio, newspaper, magazine and
other mass media advertising; and
6. the costs of building and maintaining a database of prospective
shareholders and of obtaining such analyses, reports and other
information with respect to marketing and promotional
activities and investor accounts as the Corporation may deem
advisable.
B. EXPENSES OF THE CORPORATION
1. Each Fund, or class thereof, shall bear all expenses in
connection with preparing and typesetting the Corporation's
prospectuses, statements of additional information, reports to
shareholders, and other materials, related to communications of
such class or Fund with existing shareholders.
VII. REPORTS
The Distributor shall prepare reports for the Board on a quarterly basis
showing such information concerning services provided and expenses incurred
related to this Agreement, and such other information, as from time to time may
be reasonably requested by the Board.
VIII. INDEMNIFICATION BY THE CORPORATION
The Corporation agrees to indemnify, defend and hold the Distributor,
each person who has been, is, or may hereafter be an officer, director,
employee or agent of the Distributor, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, free and harmless
against any loss, damage or expense reasonably incurred by any of them in
connection with any claim or in connection with any action, suit, or proceeding
to which any of them may be a party, which arises out of or is alleged to arise
out of or is based upon a violation of any of its covenants herein contained,
or any alleged untrue statement of a material fact, or the alleged omission to
state a material fact necessary to make the statements made not misleading, in
the Registration Statement or prospectus of the Corporation, or any amendment
or supplement thereto, unless such statement or omission was
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made in reliance upon written information furnished by the Distributor. The
foregoing rights of indemnification shall be in addition to any other rights to
which any of the foregoing indemnified parties may be entitled as a matter of
law. Nothing contained herein shall relieve the Distributor of any liability to
the Corporation 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 reckless disregard of its obligations and duties
under this Agreement.
IX. INDEMNIFICATION BY THE DISTRIBUTOR
The Distributor agrees to indemnify, defend and hold the Corporation,
each person who has been, is, or may hereafter be an officer, director,
employee or agent of the Distributor, and any person who controls the
Corporation within the meaning of Section 15 of the 1933 Act, free and harmless
against any loss, damage or expense reasonably incurred by any of them in
connection with any claim or in connection with any action, suit, or proceeding
to which any of them may be a party, which arises out of or is alleged to arise
out of or is based upon a violation of any of its covenants herein contained,
or any alleged untrue statement of a material fact, or the alleged omission to
state a material fact necessary to make the statements made not misleading, 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 (such as any selected dealer or person through whom sales are made
pursuant to an agreement with the Distributor), whether made orally or in
writing, unless such statement or omission was made in reliance upon written
information furnished by the Corporation. The foregoing rights of
indemnification shall be in addition to any other rights to which any of the
foregoing indemnified parties may be entitled as a matter of law.
X. REPURCHASE OF SHARES
The Corporation appoints and designates the Distributor as agent of the
Corporation, and the Distributor accepts such appointment as such agent, to
repurchase shares of the Corporation in accordance with the provisions of the
articles and bylaws of the Corporation.
In connection with such redemptions or repurchases, the Corporation
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 1940 Act and as set forth in the bylaws or the current
prospectus of the Corporation.
The authority of the Distributor under this section may, with the consent
of the Corporation, be redelegated in whole or in part to another person or
firm.
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The authority granted in this section may be suspended by the Corporation
at any time, or from time to time, until further notice to the Distributor.
After any such suspension the authority granted to the Distributor by this
section will be reinstated only by a written instrument executed by an officer
of the Corporation.
XI. DISTRIBUTOR IS INDEPENDENT CONTRACTOR
The Distributor is an independent contractor and shall be the agent for
the Corporation only with respect to the sale and redemption of Shares. The
Distributor is responsible for its own conduct, for the employment, control and
conduct of its agent 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 laws and agrees to
pay all employer taxes relating thereto.
XII. NON-EXCLUSIVITY
The services of the Distributor to the Corporation under this Agreement
are not to be deemed exclusive, and the Distributor shall be free to render
similar services to others (including other investment companies) so long as
its services to the Corporation are not impaired thereby. It is understood and
agreed that officers and directors of the Distributor may serve as officers or
directors of the Corporation, and that officers or directors of the Corporation
may serve as officers or directors of the Distributor to the extent permitted
by law. The officers and directors of the Distributor are not prohibited from
engaging in any other business activity or from rendering services to any other
person, or from serving as partners, officers, directors or trustees of any
other firm, corporation or trust, including other investment companies.
XIII. TERM
This Agreement shall become effective as of the later of: (i) the date
on which a Registration Statement becomes effective under the 1933 Act; and
(ii) the date on which this Agreement is executed, provided this Agreement is
approved by the vote of a majority of the Board and by the vote of a majority
of those members of the Board who are not parties to this Agreement or
interested persons of any such party, and who have no direct or indirect
interest in the operation of any 12b-1 Plan or this Agreement, cast in person
at a meeting called for the purpose of voting on such renewal.
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Unless terminated as herein provided, this Agreement shall remain in full
force and effect for one year from the date of execution of this Agreement and
shall continue in effect from year to year thereafter, only so long as such
continuance is approved at least annually:
A. by the vote of a majority of those Directors of the Corporation who
are not parties to this Agreement or interested persons of any such
party, and who have no direct or indirect interest in the operation
of any 12b-1 Plan or this Agreement, cast in person at a meeting
called for the purpose of voting on such renewal; and
B. by either the Board of the Corporation or the vote of a majority of
the outstanding voting securities of the Corporation.
XIV. TERMINATION
This Agreement may be terminated as to any class of any Fund at any
time, without the payment of any penalty, by the vote of a majority of the
Directors of the Corporation who are not interested persons of the Corporation
and who have no direct or indirect financial interest in the operation of any
12b-1 Plan or this Agreement, or by the vote of a majority of the outstanding
voting securities of the class of the Fund, on sixty (60) days' written notice
to the Distributor, or by the Distributor at any time without the payment of
any penalty, on sixty (60) days' written notice to the Corporation.
XV. ASSIGNMENT
This Distribution Agreement may not be assigned by the Distributor and
will automatically and immediately terminate in the event of its assignment.
XVI. AMENDMENTS
This Agreement may be amended at any time or from time to time by an
instrument in writing, signed by a duly authorized officer of the Corporation
and by the Distributor, but no amendment to this Agreement shall be effective
until such amendment is approved:
A. by the vote of a majority of those Directors of the Corporation who
are not parties to this Agreement or interested persons of any such
party and who have no direct or indirect financial interest in the
operation of any 12b-1 Plan or this Agreement, cast in person at a
meeting called for the purpose of voting on such approval; and
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B. by the vote of a majority of the Board of Directors of the
Corporation;
provided, however, that amendments relating to any 12b-l Plan shall not
require the consent of the Distributor.
XVII.GOVERNING LAW
This Agreement shall be governed by the laws of the State of Maryland,
without regard to conflicts of law principles; provided, however, that nothing
herein shall be construed as being inconsistent with the 1940 Act.
XVIII. DEFINITIONS
As used in this Agreement, the terms "majority of outstanding voting
securities," "interested persons," and "assignment" shall have the same
meaning as those terms have in the 1940 Act.
XIX. NOTICE
Any notice, advice or report to be given pursuant to this Agreement shall
be deemed sufficient if delivered by hand, transmitted by electronic facsimile,
or mailed by registered, certified or overnight United States mail, postage
prepaid, or sent by overnight delivery with a recognized courier, addressed by
the party giving notice to the other party at the last address furnished by the
other party:
To the Distributor at: Transamerica Securities Sales Corporation
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
To the Corporation at: Transamerica Investors, Inc.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
Each such notice, advice or report shall be effective upon receipt or
three days after mailing, whichever is first.
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XX. SEVERABILITY
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.
XXI. ENTIRE AGREEMENT
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.
XXII. 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
Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
TRANSAMERICA INVESTORS, INC.
Attest: _____________________ By:_________________________
Title:______________________
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TRANSAMERICA SECURITIES SALES
CORPORATION
Attest:______________________ By:__________________________
Title:_______________________
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