EXHIBIT 99.(e)(i)
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UNDERWRITING AGREEMENT
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THIS UNDERWRITING AGREEMENT (the "Agreement") is made as of October 1,
2004 by and between PFPC DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC
Distributors"), and WILSHIRE VARIABLE INSURANCE TRUST, a Delaware statutory
trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is currently offering units of beneficial interest (such units of all series
are hereinafter called the "Shares"), representing interests in investment
portfolios of the Fund identified on Exhibit A hereto (the "Portfolios") which
are registered with the Securities and Exchange Commission (the "SEC") pursuant
to the Fund's Registration Statement on Form N-1A (the "Registration
Statement"); and
WHEREAS, the Fund wishes to retain PFPC Distributors to serve as
distributor for the Portfolios to provide for the sale and distribution of the
Shares of the Portfolios identified on Exhibit A and for such additional classes
or series as the Fund may issue, and PFPC Distributors wishes to furnish such
services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
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(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Directors
or Trustees to give Oral Instructions and Written Instructions
on behalf of the Fund. An Authorized Person's scope of
authority may be limited by setting forth such limitation in a
written document signed by both parties hereto.
(d) "NASD" means the National Association of Securities Dealers,
Inc.
(e) "Oral Instructions" mean oral instructions received by PFPC
Distributors from an Authorized Person or from a person
reasonably believed by PFPC Distributors to be an Authorized
Person. PFPC Distributors may, in its sole discretion in each
separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(f) "Registration Statement" means any Registration Statement and
any Prospectus and any Statement of Additional Information
relating to the Fund filed with the SEC and any amendments or
supplements thereto at any time filed with the SEC.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, and the
0000 Xxx.
(h) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFPC Distributors or (ii)
trade instructions transmitted (and received by PFPC
Distributors) by means of an electronic transaction reporting
system access to which requires use of a password or other
authorized identifier. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending
device.
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2. APPOINTMENT. The Fund hereby appoints PFPC Distributors to serve as the
distributor of its Shares in accordance with the terms set forth in
this Agreement. PFPC Distributors accepts such appointment and agrees
to furnish such services. The Fund understands that PFPC Distributors
is now, and may in the future be, the distributor of the shares of
several investment companies or series (collectively, the "Investment
Entities"), including Investment Entities having investment objectives
similar to those of the Fund. The Fund further understands that
investors and potential investors in the Fund may invest in shares of
such other Investment Entities. The Fund agrees that PFPC Distributors'
duties to such Investment Entities shall not be deemed in conflict with
its duties to the Fund under this Agreement.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC Distributors undertakes to
comply with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Fund
or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Distributors
shall act only upon Oral Instructions or Written Instructions.
(b) PFPC Distributors shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed by
PFPC Distributors to be an Authorized Person) pursuant to this
Agreement. PFPC Distributors may assume that any Oral
Instruction or Written Instruction received hereunder is not
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in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Directors or Trustees or of
the Fund's shareholders, unless and until PFPC Distributors
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Distributors Written
Instructions confirming Oral Instructions so that PFPC
Distributors receives the Written Instructions by the close of
business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by PFPC Distributors or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC Distributors' ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC Distributors shall incur no liability
to the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC Distributors' actions comply
with the other provisions of this Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC Distributors is in doubt as to any
action it should or should not take, PFPC Distributors may
request directions or advice, including Oral Instructions or
Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Distributors shall be in doubt as
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to any question of law pertaining to any action it should or
should not take, PFPC Distributors may request advice from
counsel of its own choosing (who may be counsel for the Fund,
the Fund's investment adviser or PFPC Distributors, at the
option of PFPC Distributors).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Distributors receives from the Fund, and the
advice it receives from counsel, PFPC Distributors may rely
upon and follow the advice of counsel.
(d) Protection of PFPC Distributors. PFPC Distributors shall be
protected in any action it takes or does not take in reliance
upon directions or advice or Oral Instructions or Written
Instructions it receives from the Fund or from counsel and
which PFPC Distributors believes, in good faith, to be
consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC
Distributors (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PFPC
Distributors' properly taking or not taking such action.
6. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC Distributors, shall
be the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable
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securities laws, rules and regulations. The Fund and Authorized Persons
shall have access to such books and records at all times during PFPC
Distributors' normal business hours. Upon the reasonable request of the
Fund, copies of any such books and records shall be provided by PFPC
Distributors to the Fund or to an Authorized Person, at the Fund's
expense.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to
the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or
information that is competitively sensitive material, and not
generally known to the public, including, but not limited to,
information about product plans, marketing strategies,
finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or
future business activities of the Fund or PFPC Distributors,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any
scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords the Fund or PFPC Distributors a competitive advantage
over its competitors; (c) all confidential or proprietary
concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or
not patentable or copyrightable; and (d) anything designated
as confidential. Notwithstanding the foregoing, information
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shall not be subject to such confidentiality obligations if
it: (a) is already known to the receiving party at the time it
is obtained; (b) is or becomes publicly known or available
through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a
third party without restriction; (e) is required to be
disclosed by the receiving party pursuant to a requirement of
a court order, subpoena, governmental or regulatory agency or
law (provided the receiving party will provide the other party
written notice of such requirement, to the extent such notice
is permitted); (f) is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (g)
has been or is independently developed or obtained by the
receiving party.
(b) Notwithstanding any provision herein to the contrary, each
party hereto agrees that any Nonpublic Personal Information,
as defined under Section 248.3(t) of Regulation S-P
("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx
Act (the "Act"), disclosed by a party hereunder is for the
specific purpose of permitting the other party to perform the
services set forth in this Agreement. Each party agrees that,
with respect to such information, it will comply with
Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with
this Agreement to any other party, except to the extent as
necessary to carry out the services set forth in this
Agreement or as otherwise permitted by Regulation S-P or the
Act.
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8. COMPENSATION. As compensation for services rendered by PFPC
Distributors during the term of this Agreement, the Fund will pay to
PFPC Distributors a fee or fees as may be agreed to from time to time
in writing by the Fund and PFPC Distributors. The Fund acknowledges
that PFPC Distributors may receive float benefits and/or investment
earnings in connection with maintaining certain accounts required to
provide services under this Agreement.
9. INDEMNIFICATION.
(a) The Fund agrees to indemnify and hold harmless PFPC
Distributors and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including,
without limitation, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC
Distributors takes in connection with the provision of
services to the Fund. Neither PFPC Distributors, nor any of
its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) caused by PFPC
Distributors' or its affiliates' own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties
and obligations under this Agreement.
(b) The Fund agrees to indemnify and hold harmless PFPC
Distributors, its officers, directors, and employees, and any
person who controls PFPC Distributors within the meaning of
Section 15 of the 1933 Act, free and harmless (a) from and
against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments
and liabilities of any sort or kind which PFPC Distributors,
its officers, directors, employees or any such controlling
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person may incur under the 1933 Act, under any other statute,
at common law or otherwise, arising out of or based upon: (i)
any untrue statement, or alleged untrue statement, of a
material fact contained in the Fund's Registration Statement,
Prospectus, Statement of Additional Information, or sales
literature (including amendments and supplements thereto), or
(ii) any omission, or alleged omission, to state a material
fact required to be stated in the Fund's Registration
Statement, Prospectus, Statement of Additional Information or
sales literature (including amendments or supplements
thereto), necessary to make the statements therein not
misleading, provided, however, that insofar as losses, 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 on and in conformity
with information furnished to the Fund by PFPC Distributors or
its affiliated persons for use in the Fund's Registration
Statement, Prospectus, or Statement of Additional Information
or sales literature (including amendments or supplements
thereto), such indemnification is not applicable; and (b) from
and against any and all such claims, demands, liabilities and
expenses (including such costs and counsel fees) which the
PFPC Distributors, its officers and directors, or such
controlling person, may incur in connection with this
Agreement or PFPC Distributors' performance hereunder (but
excluding such claims, demands, liabilities and expenses
(including such costs and counsel fees) arising out of or
based upon any untrue statement, or alleged untrue statement,
of a material fact contained in any Registration Statement or
any Prospectus or arising out of or based upon any omission,
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or alleged omission, to state a material fact required to be
stated in either any Registration Statement or any Prospectus
or necessary to make the statements in either thereof not
misleading), unless such claims, demands, liabilities and
expenses (including such costs and counsel fees) arise by
reason of PFPC Distributors' willful misfeasance, bad faith or
gross negligence in the performance of PFPC Distributors'
duties hereunder. The Fund acknowledges and agrees that in the
event that PFPC Distributors, at the request of the Fund, is
required to give indemnification comparable to that set forth
in this paragraph to any broker-dealer selling Shares of the
Fund or servicing agent servicing the shareholders of the Fund
and such broker-dealer or servicing agent shall make a claim
for indemnification against PFPC Distributors, PFPC
Distributors shall make a similar claim for indemnification
against the Fund.
(c) PFPC Distributors agrees to indemnify and hold harmless the
Fund, its several officers and Board Members and each person,
if any, who controls a Portfolio within the meaning of Section
15 of the 1933 Act against any and all claims, costs, expenses
(including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind which
the Fund, its officers, Board Members or any such controlling
person may incur under the 1933 Act, under any other statute,
at common law or otherwise, but only to the extent that such
liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person resulting from such
claims or demands arose out of the acquisition of any Shares
by any person which may be based upon any untrue statement, or
alleged untrue statement, of a material fact contained in the
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Fund's Registration Statement, Prospectus or Statement of
Additional Information (including amendments and supplements
thereto), or any omission, or alleged omission, to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, if such statement
or omission was made in reliance upon information furnished or
confirmed in writing to the Fund by PFPC Distributors or its
affiliated persons (as defined in the 1940 Act). The foregoing
rights of indemnification shall be in addition to any other
rights to which the Fund or any such person shall be entitled
to as a matter of law.
(d) In any case in which one party hereto (the "Indemnifying
Party") may be asked to indemnify or hold the other party
hereto (the "Indemnified Party") harmless, the Indemnified
Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or
appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party,
although the failure to do so shall not prevent recovery by
the Indemnified Party, and shall keep the Indemnifying Party
advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to
defend the Indemnified Party against any Indemnification Claim
which may be the subject of this indemnification, and, in the
event that the Indemnifying Party so elects, such defense
shall be conducted by counsel chosen by the Indemnifying Party
and satisfactory to the Indemnified Party, and thereupon the
Indemnifying Party shall take over complete defense of the
Indemnification Claim and the Indemnified Party shall sustain
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no further legal or other expenses in respect of such
Indemnification Claim. In the event that the Indemnifying
Party does not elect to assume the defense of any such suit,
or in case the Indemnified Party reasonably does not approve
of counsel chosen by the Indemnifying Party, or in case there
is a conflict of interest between the Indemnifying Party or
the Indemnified Party, the Indemnifying Party will reimburse
the Indemnified Party for the fees and expenses of any counsel
retained by the Indemnified Party. The Fund agrees promptly to
notify PFPC Distributors of the commencement of any litigation
or proceedings against the Fund or any of its officers or
directors in connection with the issue and sale of any Shares.
The Indemnified Party will not confess any Indemnification
Claim or make any compromise in any case in which the
Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent.
10. RESPONSIBILITY OF PFPC DISTRIBUTORS.
(a) PFPC Distributors shall be under no duty to take any action
hereunder on behalf of the Fund except as specifically set
forth herein or as may be specifically agreed to by PFPC
Distributors and the Fund in a written amendment hereto. PFPC
Distributors shall be obligated to exercise care and diligence
in the performance of its duties hereunder and to act in good
faith in performing services provided for under this
Agreement. PFPC Distributors shall be liable only for any
damages arising out of PFPC Distributors' failure to perform
its duties under this Agreement to the extent such damages
arise out of PFPC Distributors' willful misfeasance, bad
faith, gross negligence or reckless disregard of such duties.
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(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC Distributors shall
not be liable for losses beyond its control, including,
without limitation, delays or errors or loss of data occurring
by reason of circumstances beyond PFPC Distributors' control,
provided that PFPC Distributors has acted in accordance with
the standard set forth in Section 10(a) above; and (ii) PFPC
Distributors shall not be under any duty or obligation to
inquire into and shall not be liable for the validity or
invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this
Agreement, and which PFPC Distributors reasonably believes to
be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Distributors nor its affiliates shall be liable
for any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by PFPC Distributors or its affiliates.
(d) No party may assert a cause of action against PFPC
Distributors or any of its affiliates that allegedly occurred
more than 12 months immediately prior to the filing of the
suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(f) The provisions of this Section 10 shall survive termination of
this Agreement.
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(g) Notwithstanding anything in this Agreement to the contrary,
PFPC Distributors shall have no liability either for any error
or omission of any of its predecessors as servicer on behalf
of the Fund or for any failure to discover any such error or
omission.
11. DUTIES AND OBLIGATIONS OF THE FUND.
(a) The Fund represents to PFPC Distributors that all Registration
Statements and Prospectuses filed by the Fund with the SEC
under the 1933 Act with respect to the Shares have been
prepared in conformity with the requirements of the 1933 Act
and the rules and regulations of the SEC thereunder. Except as
to information included in the Registration Statement in
reliance upon information provided to the Fund by PFPC
Distributors or any affiliate of PFPC Distributors expressly
for use in the Registration Statement, the Fund represents and
warrants to PFPC Distributors that any Registration Statement,
when such Registration Statement becomes effective, will
contain statements required to be stated therein in conformity
with the 1933 Act and the rules and regulations of the SEC;
that all statements of fact contained in any such Registration
Statement will be true and correct when such Registration
Statement becomes effective; and that no Registration
Statement when such Registration Statement becomes effective
will include an untrue statement of a material fact or omit 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. PFPC Distributors may but shall not
be obligated to propose from time to time such amendment or
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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 PFPC Distributors'
counsel, be necessary or advisable. PFPC Distributors shall
promptly notify the Fund of any advice given to it by its
counsel regarding the necessity or advisability of amending or
supplementing such Registration Statement. If the Fund shall
not propose such amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Fund of a
written request from PFPC Distributors to do so, PFPC
Distributors may, at its option, terminate this Agreement. The
Fund shall not file any amendment to any Registration
Statement or supplement to any Prospectus without giving PFPC
Distributors reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement shall in any
way limit the Fund's right to file at any time such amendments
to any Registration Statements and/or supplements to any
Prospectus, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and
unconditional. The Fund authorizes PFPC Distributors to use
any Prospectus or Statement of Additional Information in the
form furnished from time to time in connection with the sale
of the Shares.
(b) The Fund represents and warrants to PFPC Distributors that the
Fund is a series of investment company registered under the
1940 Act and the Shares sold by each Portfolio are, and will
be, registered under the 1933 Act.
(c) The net asset value of the Shares shall be determined in the
manner provided in the then current Prospectus and Statement
of Additional Information relating to the Shares, and when
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determined shall be applicable to all transactions as provided
in the Prospectus. The net asset value of the Shares shall be
calculated by the Fund or by another entity on behalf of the
Fund. PFPC Distributors shall have no duty to inquire into, or
liability for, the accuracy of the net asset value per Share
as calculated.
(d) Whenever in its judgment such action is warranted by unusual
market, economic or political conditions or abnormal
circumstances of any kind, the Fund may decline to accept any
orders for, or make any sales of, the Shares until such time
as the Fund deems it advisable to accept such orders and to
make such sales, and the Fund advises PFPC Distributors
promptly of such determination.
(e) The Fund agrees 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
PFPC Distributors may designate. The Fund shall notify PFPC
Distributors in writing of the states in which the Shares may
be sold and shall notify PFPC Distributors in writing of any
changes to the information contained in the previous
notification.
12. DUTIES AND OBLIGATIONS OF PFPC DISTRIBUTORS.
(a) PFPC Distributors will act on behalf of the Fund for the
distribution of the Shares covered by the Registration
Statement under the 1933 Act and provide the distribution
services outlined below and as follows: (i) preparation and
execution of sales or servicing agreements, (ii) preparation
of quarterly 12b-1 Reports to the Board, and (iii) literature
review, recommendations and submission to the NASD.
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(b) PFPC Distributors agrees to use efforts deemed appropriate by
PFPC Distributors to solicit orders for the sale of the Shares
and will undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. To
the extent that PFPC Distributors receives fees under any plan
adopted by the Fund pursuant to Rule 12b-1 under the 1940 Act,
PFPC Distributors agrees to furnish and/or enter into
arrangements with others for the furnishing of marketing or
sales services with respect to the Shares as may be required
pursuant to such plan. To the extent that PFPC Distributors
receives shareholder services fees under any shareholder
services plan adopted by the Fund, PFPC Distributors agrees to
furnish and/or enter into arrangements with others for the
furnishing of, personal and/or account maintenance services
with respect to the relevant shareholders of the Fund as may
be required pursuant to such plan. It is contemplated that
PFPC Distributors will enter into sales or servicing
agreements with securities dealers, financial institutions and
other industry professionals, such as investment advisers,
accountants and estate planning firms. PFPC Distributors will
require each dealer with whom PFPC Distributors has a selling
agreement to conform to the applicable provisions of the
Prospectus, with respect to the public offering price of the
Shares, and PFPC Distributors shall not cause the Fund to
withhold the placing of purchase orders so as to make a profit
thereby.
(c) PFPC Distributors shall not utilize any materials in
connection with the sale or offering of Shares except the
Fund's Prospectus and Statement of Additional Information and
such other materials as the Fund shall provide or approve. The
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Fund agrees to furnish PFPC Distributors with sufficient
copies of any and all: agreements, plans, communications with
the public or other materials which the Fund intends to use in
connection with any sales of Shares, in adequate time for PFPC
Distributors to file and clear such materials with the proper
authorities before they are put in use. PFPC Distributors and
the Fund may agree that any such material does not need to be
filed subsequent to distribution. In addition, the Fund agrees
not to use any such materials until so filed and cleared for
use, if required, by appropriate authorities as well as by
PFPC Distributors.
(d) PFPC Distributors will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent for
the Fund. PFPC Distributors will have no liability for payment
for the purchase of Shares sold pursuant to this Agreement or
with respect to redemptions or repurchases of Shares.
(e) No Shares shall be offered by either PFPC Distributors or the
Fund under any of the provisions of this Agreement and no
orders for the purchase or sale of Shares hereunder shall be
accepted by the Fund if and so long as effectiveness of the
Registration Statement then in effect or any necessary
amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current
Prospectus as required by Section 5(b)(2) of the 1933 Act is
not on file with the SEC; provided, however, that nothing
contained in this paragraph shall in any way restrict or have
any application to or bearing upon the Fund's obligation to
redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Fund's Registration
Statement, Declaration of Trust, or bylaws.
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13. DURATION AND TERMINATION. This Agreement shall become effective on the
date first written above and, unless sooner terminated as provided
herein, shall continue for an initial term until May 31, 2005 and
thereafter shall be renewed for successive one-year terms, provided
such continuance is specifically approved at least annually by (i) the
Fund's Board of Directors or (ii) by a vote of a majority (as defined
in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the Fund, provided that in either event the continuance
is also approved by a majority of the Board Members who are not parties
to this Agreement and who are not interested persons (as defined in the
0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This
Agreement is terminable without penalty, on at least sixty days'
written notice, by the Fund's Board of Directors, by vote of a majority
(as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the Fund, or by PFPC Distributors.
This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder). In
the event the Fund gives notice of termination, all expenses associated
with movement (or duplication) of records and materials and conversion
thereof to a successor transfer agent or other service provider, and
all trailing expenses incurred by PFPC Distributors, will be borne by
the Fund.
14. NOTICES. Notices shall be addressed (a) if to PFPC Distributors, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b)
if to the Fund, at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx, Xx. or (c) if to neither of the
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foregoing, at such other address as shall have been given by like
notice to the sender of any such notice or other communication by the
other party. If notice is sent by confirming telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed
to have been given three days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it
is delivered.
15. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
16. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or
engage, for the Fund or any other person, any of PFPC Distributors'
employees.
17. 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.
18. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
19. NAMES. The name "Wilshire Variable Insurance Trust" refers to the trust
created and the trustees, as trustees but not individually or
personally, acting from time to time under a Declaration of Trust dated
November 7, 1996, as amended, which is hereby referred to and a copy of
which is on file at the principal office of the Fund. The trustees,
officers, employees and agents of the Fund shall not personally be
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bound by or liable under any written obligation, contract, instrument,
certificate or other interest or undertaking of the Fund made by the
trustees or by any officer, employee or agent of the Fund, in his or
her capacity as such, nor shall resort be had to their private property
for the satisfaction of any obligation or claim thereunder. All persons
dealing with any series or class of shares of the Fund may enforce
claims against the Fund only against the assets belonging to such
series or class.
20. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its Registration Statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC Distributors hereunder
without the prior written approval of PFPC Distributors, which
approval shall not be unreasonably withheld or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) Information. The Fund will provide such information and
documentation as PFPC Distributor may reasonably request in
connection with services provided by PFPC Distributor to the
Fund.
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(e) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(f) Partial Invalidity. 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.
(g) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC Distributors hereby disclaims all
representations and warranties, express or implied, made to
the Fund or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Distributors
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(i) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
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(j) Customer Identification Program Notice. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information
that identifies each person who initially opens an account
with that financial institution on or after October 1, 2003.
Consistent with this requirement, PFPC Distributors will
request (or already has requested) the Fund's name, address
and taxpayer identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC Distributors may also ask
(and may have already asked) for additional identifying
information, and PFPC Distributors may take steps (and may
have already taken steps) to verify the authenticity and
accuracy of these data elements.
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By:______________________________
Name:____________________________
Title:___________________________
WILSHIRE VARIABLE INSURANCE TRUST
By:______________________________
Name:____________________________
Title:___________________________
24
EXHIBIT A
---------
THIS EXHIBIT A, dated as of ________________, 2004, is Exhibit A to that
certain Underwriting Agreement dated as of ________________, 2004, between PFPC
Distributors, Inc. and Wilshire Variable Insurance Trust.
PORTFOLIOS
----------
Equity Fund
Balanced Fund
Income Fund
Short-Term Investment Fund
Small Cap Growth Fund
International Equity Fund
Socially Responsible Fund
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