EXHIBIT 99(e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT made as of the 1st day of May 2003 by and between XXX
XXX FUNDS WORLDWIDE INSURANCE TRUST (the "Trust"), a Massachusetts business
trust established and existing under the laws of The Commonwealth of
Massachusetts and engaged in the business of an open-end management investment
company and XXX XXX SECURITIES CORPORATION (the "Distributor"), a corporation
organized and existing under the laws of the State of Delaware.
WHEREAS, the Trust proposes to offer shares of beneficial interest in
the Worldwide Absolute Return Fund and Ultra Short-term Income Fund series
representing interests in different portfolio of assets of the Trust and such
other series as may from time to time hereafter established (each series being
referred to herein as a "Series" or collectively as the "Series").
NOW, THEREFORE, in consideration of the mutual convenants hereinafter
contained, the parties hereto agree as follows:
Section 1. APPOINTMENT OF THE DISTRIBUTOR. The Trust hereby appoints
the Distributor as its exclusive agent to sell and distribute shares of each
Series then in existence (the "Shares") for the account and risk of the Trust
during the continuous offering of such Shares, on the terms and for the period
set forth in this Agreement, and the Distributor hereby accepts such appointment
and agrees to act hereunder. It is understood that purchases of Shares of any
Series may be made through other broker-dealers who are members in good standing
of the National Association of Securities Dealers, Inc. ("NASD") in connection
with the offering and sale of the Shares, in which case the Distributor shall
enter into Dealer Agreements ("Dealer Agreements") or amend existing Dealer
Agreements with such broker-dealers, through persons who are not required or
permitted to become NASD members by entering into Selling Agency Agreements or
other agreements ("Agency Agreements") (collectively, "Agreements") and directly
through the Trust's Transfer Agent in the manner set forth in a Series'
Prospectus.
Section 2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to arrange to sell, as exclusive
agent for the Trust, from time to time during the term of this Agreement, Shares
of any Series upon the terms described in such Series' Prospectus. As used in
this Agreement, the term "Prospectus" shall mean a prospectus and the term
"Statement of Additional Information" shall mean the statement of additional
information included in the Trust's Registration Statement and the term
"Registration Statement" shall mean the Registration Statement, including
exhibits and financial statements, most recently filed by the Trust with the
Securities and Exchange Commission and effective under the Securities Act of
1933, as amended (the "1933 Act") and the Investment Company Act
of 1940, as amended (the "1940 Act"), as such Registration Statement is amended
by any amendments thereto at the time in effect.
(b) Upon commencement of the continuous public offering of
Shares of any Series, the Distributor will hold itself available to receive
orders, satisfactory to the Distributor, for the purchase of Shares of such
Series and will accept such orders on behalf of the Series as of the time of
receipt of such orders and will transmit such orders as are so accepted to the
Trust's Transfer Agent as promptly as practicable. Purchase orders shall be
deemed effective at the time and in the manner set forth in a Series'
Prospectus.
(c) The Distributor may enter into Dealer Agreements (or amend
existing Dealer Agreements to conform therewith) with such registered and
qualified retail broker-dealers as it may select pursuant to which such
broker-dealers may also arrange for the sale or sell Shares of any Series or
enter into Agency Agreements (or amend existing Agency Agreements to conform
therewith) pursuant to which such persons may also arrange for the sale or sell
shares of any Series.
(d) The offering price of the Shares of a Series shall be the
net asset value (as described in the Articles of Incorporation of the Trust, as
amended from time to time and determined as set forth in the Prospectus and the
Statement of Additional Information of such Series) per Share for the Series
next determined following receipt of an order plus the applicable sales charge,
if any, calculated in the manner set forth in the Series' Prospectus. The
Distributor shall receive the entire amount of the sales charge, if any, as
compensation for its services under this Agreement; however, the Distributor may
reallow all or any portion of such sales charge to persons entering into
Agreements (or amending existing Dealer Agreements) with the Distributor to sell
Shares of such Series. Shares of a Series may be sold at prices that reflect
scheduled variations in, or elimination of, the sales charge to particular
classes of investors or transactions in accordance with a Series' Prospectus and
Statement of Additional Information. The Trust shall furnish the Distributor,
with all possible promptness, advice of each computation of the net asset value
of a Series. The Distributor shall also be entitled, subject to the terms and
conditions of the Trust's Plan of Distribution pursuant to Rule 12b-1 under the
Investment Company Act of 1940, to amounts payable by a Trust thereunder.
(e) The Distributor shall use its best efforts to obtain from
investors unconditional orders for Shares and shall not be obligated to arrange
for sales of any certain number of Shares of a Series and the services of the
Distributor to the Trust hereunder shall not be deemed to be exclusive, and the
Distributor shall be free to (i) render similar services to, and act as
underwriter or distributor in connection with the distribution of shares of
other investment companies, and (ii) engage in any other businesses and
activities from time to time.
(f) The Distributor is authorized on behalf of the Trust to
repurchase Shares of the Series presented to it by dealers at the price
determined in accordance with, and in the manner set for in, the Prospectus of
such Series.
2
(g) Unless otherwise notified by the Trust, any right granted
to the Distributor to accept orders for Shares or to make sales on behalf of the
Trust or to purchase Shares for resale will not apply to (i) Shares issued in
connection with the merger or consolidation of any other investment company with
the Trust or its acquisition, by purchase or otherwise, of all or substantially
all of the assets of any investment company or substantially all the outstanding
Shares of any such company and (ii) Shares that may be offered by the Trust to
shareholders of the Trust by virtue of their being such shareholders.
(h) If and whenever the determination of net asset value is
suspended and until such suspension be terminated, no further order for Shares
shall be accepted by the Distributor after it has received advance written
notice of such suspension except unconditional orders placed with the
Distributor before its receipt of notice. In addition, the Trust reserves the
right to suspend sales and the Distributor's authority to accept orders for
Shares on behalf of the Trust if, in the judgment of a majority of the Board of
Trustees or a majority of the Executive Committee of such Board, if such body
exists, it is in the best interests of the Trust to do so, such suspension to
continue for such period as may be determined by such majority; and in that
event, no Shares will be sold by the Distributor on behalf of the Trust after
the Distributor has received advance written notice while such suspension
remains in effect except for Shares necessary to cover unconditional orders
accepted by the Distributor before it had knowledge of the suspension.
Section 3. DUTIES OF THE TRUST.
(a) The Trust agrees to sell Shares of its constituent Series
so long as it has Shares available for sale and to cause its Transfer Agent to
issue, if requested by the Purchaser, certificates for Shares of its Series,
registered in such names and amounts as promptly as practicable after receipt by
the Trust of the net asset value thereof.
(b) The Trust shall keep the Distributor fully informed with
regard to its affairs and shall furnish 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 of the
Series. This shall include, without limitation, one certified copy of all
financial statements of each of the Series prepared by independent accountants
and such reasonable number of copies of a Series' most current Prospectus, the
Statement of Additional Information and annual and interim reports as the
Distributor may request. The Trust shall cooperate fully in the efforts of the
Distributor to arrange for the sale of Shares of the Series and in the
performance of the Distributor under this Agreement.
(c) The Trust shall take, from time to time, all necessary
action to register the Shares of the Series under the 1933 Act, including
payments of the related filing fees, so that there will be available for sale
such number of Shares of the Series as the Distributor may be expected to sell.
The Trust agrees to file from time to time such amendments, reports and other
documents as may be necessary in order that there may be no untrue statement of
a material fact in the Registration Statement or Prospectus of a Series, or
necessary in order that there may be no omission to state a
3
material fact in the Registration Statement or Prospectus of a Series, which
omission would make the statements therein, in light of the circumstances under
which they were made, misleading.
(d) The Trust shall use its best efforts to notify the
Distributor of the states and jurisdictions in which its shares are qualified
for sale and represents and warrants that it shall continue to qualify and
maintain the registration and qualification of an appropriate number of Shares
of the Series and the Trust for sale under the securities laws of such states as
the Distributor and the Trust shall mutually agree, and, if necessary or
appropriate in connection therewith, to qualify and maintain the qualification
of the Trust as a broker-dealer in such states. The Distributor shall furnish
such information and other material relating to its affairs and activities as
may be requested by the Trust in connection with such qualifications.
Section 4. EXPENSES
(a) The Trust shall bear all costs and expenses of the
continuous offering the Shares of the Trust in connection with: (i) fees and
disbursements of its counsel and auditors, (ii) the preparation, filing and
printing of any Registration Statements and/or Prospectuses and Statements of
Additional Information required by and under federal and state securities laws,
(iii) the preparation and mailing of annual and interim reports and proxy
materials, if any, to shareholders (iv) the qualification of the Shares of the
Series for sale and of the Trust as a broker-dealer under the securities laws of
such states or other jurisdictions as shall be selected by the Distributor
pursuant to Section 3(d) hereof and the cost and expenses payable to each such
state or jurisdiction for continuing qualification therein, and (v) the costs
associated in transmitting orders to, and processing by the Trust's transfer
agent, charges of clearing corporation and sender costs.
(b) The Distributor shall bear (i) the costs and expenses of
preparing, printing and distributing any materials not prepared by the Trust and
other materials used by the Distributor in connection with its offering of
Shares of the Series for sale to the public (including the additional costs of
printing copies of the Prospectus and of annual and interim reports) to
shareholders other than copies thereof required for distribution to existing
shareholders or for filing with any federal and state securities authorities,
(ii) any expenses of advertising incurred by the Distributor in connection with
such offering and (iii) the expenses of registration or qualification of the
Distributor as a broker-dealer under federal or state laws, if necessary, and
the expenses of continuing such registration or qualification. It is understood
and agreed that so long as any Plan of Distribution as to a Series of the Trust
pursuant to Rule 12b-1 under the 1940 Act continues in effect, any expenses
incurred by the Distributor hereunder may be paid from amounts received by it
from a Series under such Plan.
Section 5. INDEMNIFICATION.
(a) The Trust agrees to indemnify, defend and hold the
Distributor, its officers, directors, employees and agents and any person who
controls the Distributor
4
within the meaning of Section 15 of the 1933 Act or Section 20 of the Securities
Exchange Act of 1934, as amended ( the "1934 Act"), free and harmless from and
against any and all losses, claims, damages, liabilities and expenses (including
the cost of investigating or defending such claims, damages or liabilities and
any counsel fees incurred in connection therewith) which the Distributor, its
officers, directors, employees and agents or any such controlling person may
incur under the 1933 Act, the 1934 Act, or under common law or otherwise, which
(i) may be based upon any wrongful act by the Trust or any or its employees or
representatives, or (ii) which may arise out of or may be based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, Prospectus, or Statement of Additional Information of
the Trust or a Series or arising out of or based upon the omission or any
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
claims, damages, liabilities or expenses arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished in writing by the
Distributor to the Trust for use in the Registration Statement, Prospectus or
Statement of Additional Information; PROVIDED, HOWEVER, that in no case is the
Trust's indemnity deemed to protect the Distributor, its officers, directors,
employees, agents or any person who controls the Distributor within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties under
this Agreement. The Distributor agrees to promptly notify the Trust of any event
giving rise to a right of indemnification hereunder, including any action
brought against the Distributor, its officers, directors, employees and agents
or any such controlling person, such notification to be given by letter or
telegram addressed to the Trust at its principal business office, but the
Distributor's failure so to notify the Trust shall not relieve the Trust from
any obligation it may have to indemnify the Distributor hereunder or otherwise.
The Trust will be entitled to participate at its own expense in the defense, or,
if it so elects, to assume the defense of any suit brought to enforce any such
liability, but if the Trust elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the Distributor, its
officers, directors or controlling person or persons, defendant or defendants in
the suit. In the event that the Trust elects to assume the defense of any such
suit and retain such counsel, the Distributor, its officers, directors or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Trust does not elect to assume the defense of any such suit, it will
reimburse the Distributor or such, officers, directors or controlling person or
persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Trust agrees promptly to notify
the Distributor of the commencement of any litigation or proceedings against it
or any of its officers or Directors in connection with the issuance or sale of
any Shares.
The Distributor agrees to indemnify, defend and hold the Trust, its
Trustees and officers and any person who controls the Trust, if any, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, free and
harmless from and against any and all losses, claims, damages, liabilities and
expenses (including the cost of investigating or defending such claims, damages
or liabilities and any counsel fees incurred in connection therewith) which the
Trust, its Trustees or officers or any such controlling person may incur under
the 1933 Act, the 1934 Act, or under common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust, its Trustees or
officers or such
5
controlling person arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in information furnished
in writing by the Distributor to the Trust for use in the Registration
Statement, Prospectus or Statement of Additional Information of the Trust or a
Series; PROVIDED, HOWEVER, that in no case is the Distributor's indemnity deemed
to protect a Trustee or officer or any person who controls the Trust within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties under
this Agreement. The Trust agrees to promptly notify the Distributor of any event
giving rise to a right of indemnification hereunder, including any action
brought against the Trust, its Trustees or officers or any such controlling
persons, such notification being given to the Distributor at its principal
business office, but the Trust's failure so to notify the Distributor shall not
relieve the Distributor from any obligation it may have to indemnify the Trust
hereunder or otherwise. The Distributor shall be entitled to participate, at its
own expense, in the defense, or if it so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Distributor elects to
assume the defense, such defense shall be conducted by counsel chosen by the
Distributor and satisfactory to the Trust, to its officers and Trustees, or to
any controlling person or persons, defendant or defendants in the suit. In the
event that the Distributor elects to assume the defense of any such suit and
retain such counsel, the Trust, such officers and Trustees or controlling person
or persons, defendant or defendants in the suit shall bear the fees and expenses
of any additional counsel retained by them, but, in case the Distributor does
not elect to assume the defense of any such suit, the Distributor will reimburse
the Trust, such officers and Trustees or controlling person or persons,
defendant or defendants in such suit for the reasonable fees and expenses of any
counsel retained by them. The Distributor agrees promptly to notify the Trust of
the commencement of any litigation or proceedings against it in connection with
the issue and sale of any of Shares.
Section 6. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in the
first paragraph of Section 5 is for any reason held to be unavailable from the
Trust, the Trust and the Distributor shall contribute to the aggregate losses,
claims, damages, liabilities or expenses (including the reasonable costs of
investigating or defending such claims, damages or liabilities but after
deducting any contribution received by the Trust from persons other than the
Distributor who may also be liable for contribution, such as persons who control
the Trust within the meaning of the 1933 Act, officers of the Trust who signed
the applicable Registration Statement and Trustees) to which the Trust and the
Distributor may be subject in such proportion so that the Distributor is
responsible for that portion represented by the percentage the sales charge
appearing in the Prospectus of the Trust bears to the public offering price
appearing therein and the Trust is responsible for the balance; provided,
however, that (i) in no case shall the Distributor be responsible for any amount
in excess of the portion of the sales charge received and retained by it in
respect of the Shares of a Series purchased through it hereunder and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who
6
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person, if any, who controls the Distributor within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Distributor. Each party who may seek contribution
under this Section 6 shall, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
6, give written notice of the commencement of such action, suit or proceeding to
the party or parties from whom such contribution may be sought, but the omission
so to notify such contributing party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have otherwise than on account of this Section 6.
Section 7. COMPLIANCE WITH SECURITIES LAWS. The Trust represents that
it is registered as an open-end management investment company under the 1940
Act, and agrees that it will comply with all of the provisions of the 1940 Act
and of the rules and regulations thereunder. The Trust and the Distributor each
agree to comply with all of the applicable terms and provisions of the 1940 Act,
the 1933 Act and, subject to the provisions of Section 3(d), all applicable
state "Blue Sky" laws. The Distributor agrees to comply with all of the
applicable terms and provisions of the 1934 Act and to the rules and regulations
of the National Association of Securities Dealers, Inc., of which it is a
member.
Section 8. TERMS OF CONTRACT. This Agreement shall go into effect on
the date hereof and shall continue in effect until May 1, 2003 and thereafter
for successive periods of one year each if such continuance is approved at least
annually thereafter (i) either by an affirmative vote of a majority of the
outstanding shares of the Trust or by the Board of Trustees of the Trust, and
(ii) in either case, by a majority of the Trustees of the Trust who are not
interested persons of the Distributor or (otherwise than as Trustees) of the
Trust (the "12b-1 Trustees"), cast in person at a meeting called for the purpose
of voting on such approval. This Agreement may be terminated at any time without
the payment of a penalty, by a majority of the 12b-1 Trustees, by the vote of a
majority of the outstanding shares of the Trust, or by the Distributor on sixty
(60) days' written notice to the other party.
Section 9. ASSIGNMENT. This Agreement may not be assigned by the
Distributor and shall automatically terminate in the event of an attempted
assignment by the Distributor; provided, however, that the Distributor may
employ or enter into agreements with such other person, persons, company, or
companies, as it shall determine in order to assist it in carrying out this
Agreement.
Section 10. AMENDMENT. This Agreement may be amended or modified at any
time by mutual agreement in writing of the parties hereto, provided that any
such amendment is approved by a majority of the Trustees of the Trust who are
not interested persons of the Distributor or by the holders of a majority of the
outstanding Shares of the Trust. If the Trust should at any time deem it
necessary or advisable in the best interests of the Trust that any amendment of
this Agreement be made in order to comply with the recommendations or
requirements of the SEC or other governmental authority or to obtain any
advantage under state or federal tax laws and should notify the Distributor of
the form of such amendment, and the reasons therefor, and if the
7
Distributor should decline to assent forthwith. If the Distributor should at any
time request that a change be made in the Trust's Master Trust Agreement or
By-Laws or in its methods of doing business, in order to comply with any
requirements of federal law or regulations of the SEC or of a national
securities association of which the Distributor is or may be a member relating
to the sale of Shares of the Trusts, and the Trust should not make such
necessary change within a reasonable time, the Distributor may terminate this
Agreement forthwith.
Section 11. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of New York without regard
for choice of laws principles thereunder.
Section 12. AUTHORIZED REPRESENTATIONS.
(a) The Trust is not authorized to give any information or to
make any representations on behalf of the Distributor other than the information
and representations contained in a Registration statement (including a
Prospectus or Statement of Additional Information) covering Shares, as such
Registration Statement and Prospectus may be amended or supplemented from time
to time.
(b) The Distributor is not authorized to give any information
or to make any representations on behalf of the Trust or in connection with the
sale of Shares other than the information and representations contained in a
Registration statement (including a Prospectus or Statement of Additional
Information) covering Shares, as such Registration Statement may be amended or
supplemented from time to time. No person other than the Distributor is
authorized to act as principal underwriter (as such term is defined in the 0000
Xxx) for the Trust.
Section 13. PRIOR AGREEMENT SUPERSEDED. This Agreement supersedes
any prior agreement relating to the subject matter hereof between the parties.
Section 14. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 15. MISCELLANEOUS.
(a) The captions in this Agreement are included for ease of
reference only, and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(b) 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.
8
(c) The provisions of Section 5 hereof shall survive the
termination of this Agreement.
Section 16. LIMITATION OF LIABILITY.
The Term "Xxx Xxx Worldwide Insurance Trust" means and refers to the Trustees
from time to time serving under the Master Trust Agreement of the Trust dated
January 7, 1987 as the same may subsequently thereto have been, or subsequently
hereto be amended. It is expressly agreed that the obligations of the Trust
hereunder shall not be binding upon any Trustees, shareholders, nominees,
officers, agents or employees of the Trust, personally, but bind only the assets
and property of the Trust, as provided in the Master Trust Agreement of the
Trust. The execution and delivery of this Agreement have been authorized by the
Trustees and the Trust, acting as such, and neither such authorization by such
officer shall be deemed to have been made by any of them personally, but shall
bind only the assets and property of the Trust as provided in its Master Trust
Agreement.
Section 17. USE OF NAME. It is understood that the name "Xxx Xxx" or
any derivative thereof or logo associated with that name is the valuable
property of the Distributor and its affiliates, and that the Trust and Series
have the right to use such name (or derivative or logo) only with the approval
of the Distributor only so long as the Distributor is Distributor of the Trust.
Upon termination of this Agreement, the Trust and Series shall forthwith cease
to use such name (or derivative or logo).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXX XXX WORLDWIDE INSURANCE TRUST
(SEAL)
Attest: Name:
------------------------------ ------------------------------
Title:
------------------------------
XXX XXX SECURITIES CORPORATION
(SEAL)
Attest: Name:
------------------------------ ------------------------------
Title:
------------------------------
9
