Exhibit e(2)
UNDERWRITING AND DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this 1st day of May 2003, between Deutsche Asset Management VIT
FUNDS, a Massachusetts business trust (the "Trust"), on behalf of its series
Xxxxxxx Real Estate Securities Portfolio, and XXXXXXX DISTRIBUTORS, INC., a
Delaware corporation ("SDI").
In consideration of the mutual covenants hereinafter contained, it is hereby
agreed by and between the parties hereto as follows:
1. The Trust hereby appoints SDI to act as principal underwriter of shares
of beneficial interest (hereinafter called "shares") of the Trust in
jurisdictions wherein shares of the Trust may legally be offered for sale;
provided, however, that the Trust in its absolute discretion may (a) issue or
sell shares directly to holders of shares of the Trust upon such terms and
conditions and for such consideration, if any, as it may determine, whether in
connection with the distribution of subscription or purchase rights, the payment
or reinvestment of dividends or distributions, or otherwise; (b) issue or sell
shares at net asset value to the shareholders of any other investment company,
for which SDI shall act as exclusive distributor, who wish to exchange all or a
portion of their investment in shares of such other investment company for
shares of the Trust; or (c) issue shares in connection with the merger or
consolidation of any other investment company with the Trust or the Trust's
acquisition, by purchase or otherwise, of all or substantially all of the assets
of any other investment company or all or substantially all of the outstanding
shares of any such company. SDI shall appoint various financial service firms
("Firms") to provide distribution services to investors. The Firms shall provide
such office space and equipment, telephone facilities, personnel, literature
distribution, advertising and promotion as is necessary or beneficial for
providing information and distribution services to existing and potential
clients of the Firms. SDI may also provide some of the above services for the
Trust.
SDI accepts such appointment as principal underwriter and agrees to render such
services and to assume the obligations herein set forth for the compensation
herein provided. SDI shall for all purposes herein provided be deemed to be an
independent contractor and, unless expressly provided herein or otherwise
authorized, shall have no authority to act for or represent the Trust in any
way. SDI, by separate agreement with the Trust, may also serve the Trust in
other capacities. The services of SDI to the Trust under this Agreement are not
to be deemed exclusive, and SDI shall be free to render similar services or
other services to others so long as its services hereunder are not impaired
thereby.
In carrying out its duties and responsibilities hereunder, SDI will, pursuant to
separate written contracts, appoint various Firms to provide advertising,
promotion and other distribution services contemplated hereunder directly to or
for the benefit of existing and potential shareholders who may be clients of
such Firms. Such Firms shall at all times be deemed to be independent
contractors retained by SDI and not the Trust.
SDI shall use its best efforts with reasonable promptness to sell such part of
the authorized shares
of the Trust remaining unissued as from time to time shall be effectively
registered under the Securities Act of 1933 ("Securities Act"), at prices
determined as hereinafter provided and on terms hereinafter set forth, all
subject to applicable federal and state laws and regulations and to the Trust's
organizational documents, provided, however, that SDI may in its discretion
refuse to accept orders for shares from any particular applicant.
2. SDI shall sell shares of the Trust to or through qualified Firms in such
manner, not inconsistent with the provisions hereof and the Trust's currently
effective registration statement, including the prospectus and statement of
additional information and any supplements or amendments thereto ("Registration
Statement"), as SDI may determine from time to time, provided that no Firm or
other person shall be appointed or authorized to act as agent of the Trust
without prior consent of the Trust. In addition to sales made by it as agent of
the Trust, SDI may, in its discretion, also sell shares of the Trust as
principal to persons with whom it does not have selling group agreements.
Shares of any class of any series of the Trust offered for sale or sold by SDI
shall be so offered or sold at a price per share determined in accordance with
the Registration Statement. The price the Trust shall receive for all shares
purchased from it shall be the net asset value used in determining the public
offering price applicable to the sale of such shares. Any excess of the sales
price over the net asset value of the shares of the Trust sold by SDI as agent
shall be retained by SDI as a commission for its services hereunder. SDI may
compensate Firms for sales of shares at the commission levels provided in the
Registration Statement from time to time. SDI may pay other commissions, fees or
concessions to Firms, and may pay them to others in its discretion, in such
amounts as SDI shall determine from time to time. SDI shall be entitled to
receive and retain any applicable contingent deferred sales charge as described
in the Registration Statement. SDI shall also receive any distribution services
fee payable by the Trust as provided in the Trust's Rule 12b-1 Plan, as amended
from time to time (the "Plan").
SDI will require each Firm to conform to the provisions hereof and the
Registration Statement with respect to the public offering price or net asset
value, as applicable, of the Trust's shares, and neither SDI nor any such Firms
shall withhold the placing of purchase orders so as to make a profit thereby.
3. The Trust will use its best efforts to keep effectively registered under
the Securities Act for sale as herein contemplated such shares as SDI shall
reasonably request and as the Securities and Exchange Commission shall permit to
be so registered. Notwithstanding any other provision hereof, the Trust may
terminate, suspend or withdraw the offering of shares whenever, in its sole
discretion, it deems such action to be desirable.
4. The Trust will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the Trust
as a dealer where necessary or advisable) in such states as SDI may reasonably
request (it being understood that the Trust shall not be required without its
consent to comply with any requirement which in its opinion is unduly
burdensome). The Trust will furnish to SDI from time to time such information
with respect to the Trust and its shares as SDI may reasonably request for use
in connection with the sale of shares of the Trust.
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5. SDI shall issue and deliver or shall arrange for various Firms to issue
and deliver on behalf of the Trust such confirmations of sales made by it
pursuant to this Agreement as may be required. At or prior to the time of
issuance of shares, SDI will pay or cause to be paid to the Trust the amount due
the Trust for the sale of such shares. Certificates shall be issued or shares
registered on the transfer books of the Trust in such names and denominations as
SDI may specify.
6. SDI shall order shares of the Trust from the Trust only to the extent
that it shall have received purchase orders therefor. SDI will not make, or
authorize Firms or others to make (a) any short sales of shares of the Trust; or
(b) any sales of such shares to any Board member or officer of the Trust or to
any officer or Board member of SDI or of any corporation or association
furnishing investment advisory, managerial or supervisory services to the Trust,
or to any corporation or association, unless such sales are made in accordance
with the Registration Statement relating to the sale of such shares. SDI, as
agent of and for the account of the Trust, may repurchase the shares of the
Trust at such prices and upon such terms and conditions as shall be specified in
the Registration Statement. In selling or reacquiring shares of the Trust for
the account of the Trust, SDI will in all respects conform to the requirements
of all state and federal laws and the Conduct Rules of the National Association
of Securities Dealers, Inc., relating to such sale or reacquisition, as the case
may be. SDI will observe and be bound by all the provisions of the Trust's
organizational documents (and of any Trustamental policies adopted by the Trust
pursuant to the Investment Company Act of 1940, as amended (the "Investment
Company Act"), notice of which shall have been given to SDI) which at the time
in any way require, limit, restrict, prohibit or otherwise regulate any action
on the part of SDI hereunder.
SDI agrees to indemnify and hold harmless the Trust and each of its Board
members and officers and each person, if any, who controls the Trust within the
meaning of Section 15 of the Securities Act, against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
the Trust or such Board members, officers, or controlling persons may become
subject under such Act, under any other statute, at common law or otherwise,
arising out of the acquisition of any shares by any person which (i) may be
based upon any wrongful act by SDI or any of SDI's employees or representatives,
or (ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading if such statement or
omission was made in reliance upon information furnished to the Trust by SDI, or
(iii) may be incurred or arise by reason of SDI's acting as the Trust's agent
instead of purchasing and reselling shares as principal in distributing the
shares to the public, provided, however, that in no case (i) is SDI's indemnity
in favor of a Board member or officer or any other person deemed to protect such
Board member or officer or other person 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 or (ii) is SDI
to be liable under the indemnity agreement contained in this paragraph with
respect to any claim made against the Trust or any person indemnified unless the
Trust or such person, as the case may be, shall have notified SDI in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the Trust or
upon such
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person (or after the Trust or such person shall have received notice of such
service on any designated agent), but failure to notify SDI of any such claim
shall not relieve SDI from any liability which SDI may have to the Trust or any
person against whom such action is brought otherwise than on account of SDI's
indemnity agreement contained in this paragraph. SDI shall be entitled to
participate, at SDI's own expense, in the defense, or, if SDI so elects, to
assume the defense of any suit brought to enforce any such liability, but if SDI
elects to assume the defense, such defense shall be conducted by counsel chosen
by SDI and satisfactory to the Trust, to its officers and Board members, or to
any controlling person or persons, defendant or defendants in the suit. In the
event that SDI elects to assume the defense of any such suit and retain such
counsel, the Trust, such officers and Board members 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 SDI does not elect to
assume the defense of any such suit, SDI will reimburse the Trust, such officers
and Board members or controlling person or persons, defendant or defendants in
such suit for the reasonable fees and expenses of any counsel retained by them.
SDI agrees to notify the Trust promptly of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any shares. The
Trust shall not, without the prior written consent of SDI, effect any settlement
of any pending or threatened action, suit or proceeding in respect of which the
Trust is or could have been a party and indemnity has or could have been sought
hereunder by the Trust, unless such settlement includes an unconditional release
of SDI from all liability on claims that are the subject matter of such action,
suit or proceeding.
The Trust agrees to indemnify and hold harmless SDI and each of SDI's directors
and officers and each person, if any, who controls SDI within the meaning of
Section 15 of the Securities Act, against any and all losses, claims, damages,
liabilities or litigation (including legal and other expenses) to which SDI or
such directors, officers or controlling persons may become subject under such
Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any shares by any person which (i) may be based upon any wrongful
act by the Trust or any of its employees or representatives, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or omission was not made
in reliance upon information furnished to SDI by the Trust; provided, however,
that in no case (i) is the Trust's indemnity in favor of a director or officer
or any other person deemed to protect such director or officer or other person
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 or (ii) is the Trust to be liable under its indemnity
agreement contained in this paragraph with respect to any claims made against
SDI or any such director, officer or controlling person unless SDI or such
director, officer or controlling person, as the case may be, shall have notified
the Trust in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon SDI or upon such director, officer or controlling person (or after
SDI or such director, officer or controlling person shall have received notice
of such service on any designated agent), but failure to notify the Trust of any
such claim shall not relieve it from any liability which it may have to the
person against whom such action is brought otherwise than on account of its
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indemnity agreement contained in this paragraph. 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 SDI, its directors, officers, 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, SDI, its
directors, officers 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 SDI or such directors, officers 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 to notify SDI
promptly 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. SDI shall not, without the prior written consent of the Trust, effect
any settlement of any pending or threatened action, suit or proceeding in
respect of which either SDI is or could have been a party and indemnity has or
could have been sought hereunder by SDI, unless such settlement includes an
unconditional release of the Trust from all liability on claims that are the
subject matter of such action, suit or proceeding.
7. The Trust shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by SDI under
this Agreement or the Plan. The Trust will pay (or will enter into arrangements
providing that others will pay) all fees and expenses in connection with the
registration of the Trust and its shares under the United States securities laws
and, effective April 5, 2002, the registration and qualification of shares for
sale in the various jurisdictions in which the Trust shall determine it
advisable to qualify such shares for sale (including registering the Trust as a
broker or dealer or any officer of the Trust or other person as agent or
salesman of the Trust in any such jurisdictions) ("Blue Sky expenses"). Prior to
April 5, 2002, SDI will pay all such Blue Sky expenses. In addition, SDI will
pay all expenses (other than expenses which one or more Firms may bear pursuant
to any agreement with SDI) incident to the sale and distribution of the shares
issued or sold hereunder, including, without limiting the generality of the
foregoing, all (a) expenses of printing and distributing any prospectus and of
preparing, printing and distributing or disseminating any other literature,
advertising and selling aids in connection with the offering of the shares for
sale (except that such expenses need not include expenses incurred by the Trust
in connection with the preparation, typesetting, printing and distribution of
any registration statement or prospectus, report or other communication to
shareholders in their capacity as such), and (b) expenses of advertising in
connection with such offering.
No transfer taxes, if any, which may be payable in connection with the issue or
delivery or shares sold as herein contemplated or of the certificates for such
shares shall be borne by the Trust, and SDI will bear all such transfer taxes.
8. This Agreement shall become effective on the date hereof and shall
continue until May 1, 2004; and shall continue from year to year thereafter only
so long as such continuance is approved in the manner required by the Investment
Company Act.
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This Agreement shall automatically terminate in the event of its assignment and
may be terminated at any time without the payment of any penalty by the Trust or
by SDI on sixty (60) days' written notice to the other party. The indemnity
provisions contained herein shall remain operative and in full force and effect
regardless of any termination of this Agreement. The Trust may effect
termination with respect to any class of any series of the Trust by a vote of
(i) a majority of the Board members who are not interested persons of the Trust
and who have no direct or indirect financial interest in the operation of the
Plan, this Agreement, or in any other agreement related to the Plan, or (ii) a
majority of the outstanding voting securities of such series or class. Without
prejudice to any other remedies of the Trust, the Trust may terminate this
Agreement at any time immediately upon SDI's failure to fulfill any of its
obligations hereunder.
All material amendments to this Agreement must be approved by a vote of a
majority of the Board, and of the Board members who are not interested persons
of the Trust and who have no direct or indirect financial interest in the
operation of the Plan, this Agreement or in any other agreement related to the
Plan, cast in person at a meeting called for such purpose.
The terms "assignment," "interested person" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth in the
Investment Company Act and the rules and regulations thereunder.
SDI shall receive such compensation for its distribution services as set forth
in the Plan. Termination of this Agreement shall not affect the right of SDI to
receive payments on any unpaid balance of the compensation earned prior to such
termination, as set forth in the Plan.
Notwithstanding anything in this Agreement to the contrary, SDI shall be
contractually bound hereunder by the terms of any publicly announced waiver of
or cap on the compensation received for its distribution services under the Plan
or by the terms of any written document provided to the Board of the Trust
announcing a waiver or cap, as if such waiver or cap were fully set forth
herein.
9. SDI will not use or distribute, or authorize the use, distribution or
dissemination by Firms or others in connection with the sale of Trust shares any
statements other than those contained in the Registration Statement, except such
supplemental literature or advertising as shall be lawful under federal and
state securities laws and regulations. SDI will furnish the Trust with copies of
all such material.
10. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder shall not be thereby
affected.
11. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for the receipt of such notice.
12. All parties hereto are expressly put on notice of the Trust's Agreement
and Declaration of Trust, and all amendments thereto, all of which are on file
with the Secretary of The Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability
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contained therein. This Agreement has been executed by and on behalf of the
Trust by its representatives as such representatives and not individually, and
the obligations of the Trust hereunder are not binding upon any of the Trustees,
officers or shareholders of the Trust individually but are binding upon only the
assets and property of the Trust. With respect to any claim by SDI for recovery
of any liability of the Trust arising hereunder allocated to a particular series
or class, whether in accordance with the express terms hereof or otherwise, SDI
shall have recourse solely against the assets of that series or class to satisfy
such claim and shall have no recourse against the assets of any other series or
class for such purpose.
13. This Agreement shall be construed in accordance with applicable federal
law and with the laws of The Commonwealth of Massachusetts.
14. This Agreement is the entire contract between the parties relating to
the subject matter hereof and supersedes all prior agreements between the
parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the Trust and SDI have caused this Agreement to be executed
as of the day and year first above written.
Deutsche Asset Management VIT Funds
Attest:
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxx
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Xxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxx
Assistant Secretary President
Attest: XXXXXXX DISTRIBUTORS, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxx
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Xxxxx X. Xxxxxxxxx Xxxxxxxx X. Xxxx
Assistant Secretary President
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