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Exhibit 99(e)(1)(ii)
UNDERWRITING AGREEMENT
This Agreement, dated as of December 1, 1999, is made by and between
Xxxxxxxx International Funds, a Delaware business trust (the "Fund") operating
as an open-end management investment company registered under the Investment
Company Act of 1940, as amended (the "Act"), and Provident Distributors, Inc.
("PDI"), a corporation duly organized and existing under the laws of the State
of Delaware (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Fund is authorized to issue separate series of shares
representing interests in separate investment portfolios (the "Series"), which
Series are identified on Schedule "A" attached hereto, and which Schedule "A"
may be amended from time to time by mutual agreement among the Parties; and
WHEREAS, PDI is a broker-dealer registered with the U.S. Securities and
Exchange Commission (the "SEC") and a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Parties are desirous of entering into an agreement
providing for the distribution by PDI of the shares of the Fund (the "Shares").
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and in exchange of good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, the Parties hereto,
intending to be legally bound, do hereby agree as follows:
1. APPOINTMENT
The Fund hereby appoints PDI as its principal agent for the
distribution of the Shares, and PDI hereby accepts such appointment
under the terms of this Agreement. The Fund agrees that it will not
sell any Shares to any person except to fill orders for the Shares
received through PDI, provided, however, that the foregoing exclusive
right shall not apply to: (a) Shares issued or sold in connection with
the merger or consolidation of any other investment company with the
Fund or the acquisition by purchase of otherwise of all or
substantially all of the assets of any investment company or
substantially all of the outstanding shares of any such company by the
Fund; (b) Shares which may be offered by the Fund to its stockholders
for reinvestment of cash distributed from capital gains or net
investment income of the Fund; or (c) Shares which may be issued to
shareholders of other funds who exercise any exchange privilege set
forth in the Fund's Prospectus. Notwithstanding any other provision
hereof, the Fund may terminate, suspend, or withdraw the offering of
the Shares
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whenever, in their sole discretion, they deem such action to be
desirable.
2. SALE AND REPURCHASE OF SHARES
(a) PDI is hereby granted the right, as agent for the Fund, to
sell Shares to the public against orders received at the
public offering price as defined in the Fund's Prospectus and
Statement of Additional Information.
(b) PDI will also have the right to take, as agent for the Fund,
all actions which, in PDI's judgment, and subject to the
Fund's reasonable approval, are necessary to carry into effect
the distribution of the Shares.
(c) PDI will act as agent for the Fund in connection with the
repurchase of Shares by the Fund upon the terms set forth in
the Fund's Prospectus and Statement of Additional Information.
(d) 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
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. PDI shall have no duty to inquire into, or liability
for, the accuracy of the net asset value per Share as
calculated.
(e) On every sale, PDI shall promptly pay to the Fund the
applicable net asset value of the Shares.
(f) Upon receipt of purchase instructions, PDI will transmit such
instructions to the Fund or its transfer agent for
registration of the Shares purchased.
(g) Nothing in this Agreement shall prevent PDI or any affiliated
person (as defined in the Act) of PDI from acting as
underwriter for any other person, firm or corporation
(including other investment companies), or in any way limit or
restrict PDI or such affiliated person from buying, selling or
trading any securities for its or their own account or for the
account of others for whom it or they may be acting, provided,
however, that PDI expressly agrees that it will not for its
own account purchase any Shares of the Fund except for
investment purposes, and that it will not for its own account
dispose of any such Shares except by redemption of such Shares
with the Fund, and that it will not undertake in any
activities which, in its judgment, will adversely affect the
performance of its obligations to the Fund under this
Agreement.
3. RULES OF SALE OF SHARES
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PDI does not agree to sell any specific number of Shares and serves
only in the capacity of Statutory Underwriter. The Fund reserves the
right to terminate, suspend or withdraw the sale of its Shares for any
reason deemed adequate by it, and the Fund reserves the right to refuse
at any time or times to sell any of its Shares to any person for any
reason deemed adequate by it.
4. RULES OF NASD, ETC.
(a) PDI will conform to the Conduct Rules of the NASD and the
securities laws of any jurisdiction in which it directly or
indirectly sells any Shares.
(b) PDI will require each dealer with whom PDI has a selling
agreement to conform to the applicable provisions of the
Prospectus, with respect to the public offering price of the
Shares, and PDI shall not cause the Fund to withhold the
placing of purchase orders so as to make a profit thereby.
(c) The Fund agrees to furnish PDI 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 PDI to file and
clear such materials with the proper authorities before they
are put in use. PDI and the Fund may agree that any such
material does not need to be filed prior 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 PDI.
(d) PDI, at its own expense, will qualify as a dealer or broker,
or otherwise, under all applicable state or federal laws
required in order that the Shares may be sold in such states
as may be mutually agreed upon by the Parties.
(e) PDI shall remain registered with the SEC and a member of the
NASD for the term of this Agreement.
(f) PDI shall not, in connection with any sale or solicitation of
a sale of the Shares, make or authorize any representative,
service organization, broker or dealer to make any
representations concerning the Shares, except those contained
in the Prospectus offering the Shares and in communications
with the public or sales materials approved by PDI as
information supplemental to such Prospectus. Copies of the
Prospectus will be supplied by the Fund to PDI in reasonable
quantities upon request.
(g) PDI shall only be authorized to make representations in
respect of the Fund consistent with the then current
Prospectus, Statement of Additional Information, and other
written information provided by the Fund or its agents to be
used explicitly with respect to the sale of Shares.
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5. RECORDS TO BE SUPPLIED BY THE FUND
The Fund shall furnish to PDI copies of all information, financial
statements and other papers which PDI may reasonably request for use in
connection with the underwriting of the Shares including, but not
limited to, one certified copy of all financial statements prepared for
the Fund by its independent public accountants.
6. EXPENSES
(a) The Fund will bear the following expenses:
(i) reparation, setting in type, and printing of
sufficient copies of the Prospectus and Statement of
Additional Information for distribution to
shareholders, and the cost of distribution of same to
the shareholders;
(ii) preparation, printing and distribution of reports and
other communications to shareholders;
(iii) registration of the Shares under the federal
securities laws;
(iv) qualification of the Shares for sale in the
jurisdictions as directed by the Fund;
(v) maintaining facilities for the issue and transfer of
the Shares;
(vi) supplying information, prices and other data to be
furnished by the Fund under this Agreement; and
(vii) any original issue taxes or transfer taxes applicable
to the sale or delivery of the Shares or certificates
therefor.
(b) PDI agrees to pay all of its own expenses in performing its
obligations hereunder.
7. TERM
(a) The term of this Agreement shall commence immediately upon the
consummation of the acquisition of First Data Investor
Services Group, Inc. by a subsidiary of PNC Bank Corp., which
the parties anticipate to occur on or about December 1, 1999
(the "Effective Date").
(b) This Agreement shall remain in effect for one (1) year from
the Effective Date. This Agreement shall continue thereafter
for periods not exceeding one (1) year, if approved at least
annually (i) by a vote of a majority of the outstanding voting
securities of each Series, or (ii) by
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a vote of a majority of the Board Members of the Fund who are
not parties to this Agreement (other than as Board Members of
the Fund) or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such
approval.
(c) This Agreement (i) may be terminated at any time without the
payment of any penalty, either by a vote of the Trustees of
the Fund or by a vote of a majority of the outstanding voting
securities of each Series with respect to such Series, on
sixty (60) days' written notice to PDI; and (ii) may be
terminated by PDI on sixty (60) days' written notice to the
Fund with respect to any Series.
(d) This Agreement shall automatically terminate in the event of
its assignment, as defined in the Act.
8. LIABILITY OF PDI
(a) PDI, its directors, officers, employees, shareholders and
agents shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in
connection with the performance of this Agreement, except a
loss resulting from a breach of PDI's obligations pursuant to
Section 4 of this Agreement (Rules of NASD), a breach of
fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad
faith or gross negligence on the part of PDI in the
performance of its obligations and duties or by reason of its
reckless disregard of its obligations and duties under this
Agreement. PDI agrees to indemnify and hold harmless the Fund
and each person who has been, is, or may hereafter be a
Trustee, officer, or employee of the Fund against expenses
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 any misrepresentation or omission to
state a material fact, on the part of PDI or any agent of
employee of PDI or any of the persons for whose acts PDI is
responsible or is alleged to be responsible unless such
misrepresentation or omission was made in reliance upon
written information furnished to PDI by the Fund. PDI also
agrees to indemnify and hold harmless the Fund and each such
person in connection with any claim or in connection with any
action, suit, or proceeding which arises out of or is alleged
to arise out of PDI's failure to exercise reasonable care and
diligence with respect to its services rendered in connection
with the purchase and sale of Shares. 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.
(b) The Fund agrees to indemnify and hold harmless PDI against any
and all liability, loss, damages, costs of expenses
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(including reasonable counsel fees) which PDI may incur or be
required to pay hereafter, in connection with any action, suit
or other proceeding, whether civil or criminal, before any
court or administrative or legislative body, in which PDI may
be involved as a party or otherwise or with which PDI may be
threatened, by reason of the offer or sale of the Fund's
Shares by persons other than PDI or its representatives, prior
to the execution of this Agreement. If a claim is made against
PDI as to which PDI may seek indemnity under the Section, PDI
shall notify the Fund promptly after any written assertion of
such claim threatening to institute an action or proceeding
with respect thereto and shall notify the Fund promptly of any
action commenced against PDI within 10 days time after PDI
shall have been served with a summons or other legal process,
giving information as to the nature and basis of the claim.
Failure to notify the Fund shall not, however, relieve the
Fund from any liability which it may have on account of the
indemnity under this Section 8(b) if the Fund has not been
prejudiced in any material respect by such failure. The Fund
shall have the sole right to control the settlement of any
such action, suit or proceeding subject to PDI approval, which
shall not be unreasonably withheld. PDI shall have the right
to participate in the defense of an action or proceeding and
to retain its own counsel, and the reasonable fees and
expenses of such counsel shall be borne by the Fund (which
shall pay such fees, costs and expenses at least quarterly)
if:
(i) PDI has received an opinion of counsel
stating that the use of counsel chosen by
the Fund to represent PDI would present such
counsel with a conflict of interest:
(ii) the defendants in, or targets of, any such
action or proceeding include both PDI and
the Fund, and legal counsel to PDI shall
have reasonably concluded that there are
legal defenses available to it which are
different from or additional to those
available to the trust or which may be
adverse to or inconsistent with defenses
available to the Fund (in which case the
Fund shall not have the right to direct the
defense of such action on behalf of PDI); or
(iii) the Fund shall authorize PDI to employ
separate counsel at the expense of the Fund.
(c) Any person, even though also a director, officer, employee,
shareholder or agent of PDI who may be or become an officer,
director, trustee, employee or agent of the Fund, shall be
deemed, when rendering services to the Fund or acting on any
business of the Fund (other than services or business in
connection with PDI's duties hereunder), to be rendering
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such services to or acting solely for the Fund and not as a
director, officer, employee, shareholder or agent, or one
under the control or direction of PDI even though receiving a
salary from PDI.
(d) The Fund agrees to indemnify and hold harmless PDI, and each
person who controls PDI within the meaning of Section 15 of
the Securities Act of 1933, as amended (the "Securities Act"),
or Section 20 of the Securities Exchange Act of 1934, s
amended (the "Exchange Act"), against any and all losses,
claims, damages and liabilities, joint or several (including
any reasonable investigative, legal and other expenses
incurred in connection therewith) to which they, or any of
them, may become subject under the Act, the Securities Act,
the Exchange Act or other federal or state law or regulations,
at common law or otherwise insofar as such losses, claims,
damages or liabilities (or actions, suits or proceedings in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in a Prospectus, Statement of Additional
Information, supplement thereto, sales literature (or other
written information) prepared by the Fund and furnished by the
Fund to PDI for PDI's use hereunder, disseminated by the trust
or which arise out of or are based upon any omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading.
Such indemnity shall not, however, inure to the benefit of PDI
(or any person controlling PDI) on account of any losses,
claims, damages or liabilities (or actions, suits or
proceedings in respect thereof) arising from the sale of the
Shares of the Fund to any person by PDI (i) if such untrue
statement or omission or alleged untrue statement or omission
was made in the Prospectus, Statement of Additional
Information, or supplement, sales or other literature, in
reliance upon and in conformity with information furnished in
writing to the Fund by PDI specifically for use therein or
(ii) if such losses, claims, damages or liabilities arise out
of or are based upon an untrue statement or omission or
alleged untrue statement or omission found in any Prospectus,
Statement of Additional Information, supplement, sales or
other literature, subsequently corrected, but negligently
distributed by PDI and a copy of the corrected Prospectus was
not delivered to such person at or before the confirmation of
the sale to such person
(e) PDI shall not be responsible for any damages, consequential or
otherwise, which the Fund may experience, due to the
disruption of the distribution of Shares caused by any action
or inaction of any registered representative or affiliate of
PDI or of PDI itself.
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(f) Notwithstanding anything in this Agreement to the contrary, in
no event shall any party to this Agreement, its affiliates or
any of its or their directors, trustees, officers, employees,
agents or subcontractors be liable for lost profits,
exemplary, punitive, special, incidental, indirect or
consequential damages.
9. AMENDMENTS
No provision of this Agreement may be amended or modified in any manner
whatsoever, except by a written agreement properly authorized and
executed by the Parties.
10. SECTION HEADINGS
Section and paragraph headings are for convenience only and shall not
be construed as part of this Agreement.
11. REPORTS
PDI shall prepare reports for the Board of the Fund, on a quarterly
basis, showing such information as, from time to time, shall be
reasonably requested by the Board.
12. SEVERABILITY
If any part, term or provision of this Agreement is held by any court
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not
affected, and the rights and obligations of the Parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid
provided that the basic agreement is not thereby substantially
impaired.
13. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware
and the exclusive venue of any action arising under this Agreement
shall be the City of Wilmington, State of Delaware.
14. AUTHORITY TO EXECUTE
The Parties represent and warrant to each other that the execution and
delivery of this Agreement by the undersigned officer of each Party has
been duly and validly authorized; and, when duly executed, this
Agreement will constitute a valid and legally binding and enforceable
obligation of each Party.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed
by their duly authorized officer, of the day and year first above written.
PROVIDENT DISTRIBUTORS, INC.
/s/ Xxxxxx X. Xxxxxxxxx
-------------------
By: Xxxxxx X. Xxxxxxxxx
Title: President
XXXXXXXX INTERNATIONAL FUNDS
/s/ G. Xxxx Xxxxxxxx
----------------
By: G. Xxxx Xxxxxxxx
Title:President
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SCHEDULE A
IDENTIFICATION OF SERIES
Below are listed the Series and Classes of Shares to which services under this
Agreement are to be performed as of the Effective Date of this Agreement:
Xxxxxxxx Pacific Tiger Fund - Class A & Class I
Xxxxxxxx Asian Growth & Income Fund
Xxxxxxxx Korea Fund - Class A & Class I
Xxxxxxxx Dragon Century China Fund - Class A & I
Xxxxxxxx Japan Fund
Xxxxxxxx Asian Technology Fund
This Schedule "A" may be amended from time to time by agreement of the Parties.
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