EXHIBIT 99.(e)(ii)
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SELLING/SERVICES AGREEMENT FOR
WILSHIRE VARIABLE INSURANCE TRUST
TO: PFPC Distributors, Inc.
000 Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
FROM: _______________________________
_______________________________
_______________________________
Ladies and Gentlemen:
For the mutual promises contained herein and other good and valuable
consideration, we enter into this Agreement with you for the provision of
certain services outlined below to our Customers ("Customers") who from time to
time may beneficially own shares (the "Shares") of Wilshire Variable Insurance
Trust (the "Fund") of which you are the Distributor and whose Shares are offered
at the net asset value next determined after a purchase order is effective (the
"Current Offering Price"). Upon acceptance of this Agreement by you, we
understand that we may offer and sell Shares of the Fund and/or provide
administrative services to the Fund (including Shares of any and all series or
portfolios thereof (individually, a "Portfolio" and collectively, the
"Portfolios") and any classes thereof) subject, however, to all of the terms and
conditions hereof and to your right, without notice, to suspend or terminate the
sale of Shares. The terms and conditions of this Services Agreement are as
follows.
1. We understand that we will be compensated by you as set forth in the
applicable current Prospectus for each Portfolio for services that we
provide pursuant to this Agreement and as stated in Schedule A to this
Agreement. The term "Prospectus" herein refers to the prospectus on file
with the Securities and Exchange Commission (the "SEC") which is part of
the registration statement of the Fund under the Securities Act of l933, as
amended. We acknowledge that any compensation paid to us is subject to the
terms of the Amended and Restated Distribution and Services Plan under Rule
12b-1 adopted by the Portfolios (the "Plan"), Rule 12b-1 promulgated
pursuant to the Investment Company Act of 1940, as amended, and all rules
and regulations of the National Association of Securities Dealers, Inc.
(the "NASD").
2. We will provide one or more of the following services to Customers:
(a) activities or expenses primarily intended to result in the sale of
Shares, including, but not limited to: (i) distribution of the Shares;
(ii) aiding in the processing of purchase or redemption requests for
the Shares or the processing of dividend payments with respect to the
Shares; (iii) providing information periodically to Customers showing
their positions in the Fund; (iv) forwarding communications from the
Fund to Customers; (v) rendering ongoing advice concerning the
suitability of particular investment opportunities offered by the Fund
in light of the Customer's needs; (vi) responding to inquiries from
Customers relating to such services; and (vii) training personnel in
the provision of such services; and
(b) administrative services to the Shares, which may include (and are in
addition to any such general services provided to a Portfolio as a
whole): (i) transfer agent and sub-transfer agent services for
Customers; (ii) aggregating and processing purchase and redemption
requests for Shares from Customers and placing net purchase and
redemption orders with the Distributor; (iii) providing Customers who
are not record owners with statements showing their positions in the
Fund; (iv) processing dividend payments for Shares; (v) providing
sub-accounting services for Customers; (vi) forwarding shareholder
communications, such as proxies, shareholder reports, dividend and tax
notices, and updating Prospectuses to Customers who are not record
owners; and (vii) receiving, tabulating and transmitting proxies
executed by Customers who are not record owners; and
We will provide such office space and equipment, telephone facilities, and
personnel (which may be any part of the space, equipment, and facilities
currently used in our business, or any personnel employed by us) as may be
reasonably necessary or beneficial in order to provide such services to
Customers. The Customers in question are for all purposes our Customers and
not your Customers. You shall execute our transactions for each of our
Customers only upon our authorization; it being understood in all cases
that (i) we are acting as the agent for the Customer; (ii) as between us
and the Customer, the Customer will have beneficial ownership of the
securities; (iii) each transaction is initiated solely upon the order of
the Customer; (iv) each transaction shall be executed by the Fund only upon
receipt of instructions from us acting as agent for our Customer, and (v)
each transaction is for the account of the Customer and not for our
account. We represent and warrant that we will have the full right, power
and authority to effect transactions (including without limitation, placing
any purchase and redemptions) in Shares on behalf of all Customer accounts
provided by us to you or to any transfer agent of the Fund as such term is
defined in the Prospectus of the Fund (the
"Transfer Agent"). We shall be responsible for opening and approving and
monitoring Customer accounts, all in accordance with applicable law,
including the rules of the SEC and NASD.
Orders for Shares received from us will be accepted by you only at the
price and other terms, applicable to each order as described in the then
current prospectus of the Fund or the Portfolio.
We will act solely as an agent for, upon the order of, and for the account
of, our Customers. In no transaction shall we have any authority to act as
agent for the Fund or for you.
3. For the services rendered and expenses borne in connection with the
provision of the foregoing services you agree to pay us an annual fee of up
to 0.25% of the Fund's average daily net assets attributable to the Shares
of our Customers with respect to the distribution services provided
pursuant to Section 2(a) or administrative services provided pursuant to
Section 2(b). We acknowledge that any compensation paid to us is subject to
the terms of the Plan.
4. We understand that the Shares will be offered and sold at the then Current
Offering Price per Share in effect at the time the order for such Shares is
confirmed and accepted by you or your agent. All orders for redemption of
any Shares shall be executed at the net asset value per Share. The minimum
dollar purchase of Shares shall be the applicable minimum amount described
in the then current applicable Prospectus and no order for less than such
amount will be accepted hereunder. All purchase requests and applications
submitted by us are subject to acceptance or rejection in your sole
discretion, and, if accepted, each purchase will be deemed to have been
consummated at your office. The procedures for handling orders shall be
subject to the instructions which you shall forward to us from time to
time. The Fund reserves the right, at its discretion and without notice, to
suspend the sale of Shares or withdraw entirely the sale of Shares of any
or all Portfolios of the Fund.
5. Neither we nor any of our officers, employees or agents are authorized to
make any representations concerning the Fund or the Shares except those
contained in the Fund's then current Prospectus or statement of additional
information, copies of which will be supplied by you, or in such
supplemental sales literature or advertising as may be authorized by you in
writing.
6. We will maintain all records required by law to be kept by us relating to
transactions in Shares and, upon request by the Fund, promptly make
available such records and other records to the Fund, its designee or you
as the Fund or you may reasonably request.
7. Exchanges (i.e., the investment of the proceeds from the liquidation of
Shares of one Portfolio in the Shares of another Portfolio or shares of
another registered open-end investment fund specified in the Prospectus)
shall, where available, be made in accordance with the terms of each
Portfolio's Prospectus.
8. The procedures relating to purchase, redemption or exchange orders and the
handling thereof will be subject to the terms of the Prospectus of the
Portfolio involved and instructions received by us from you or the Transfer
Agent from time to time. We understand and agree that, if any Shares of the
Portfolios sold under this Agreement are redeemed or repurchased by the
Portfolios or by you as disclosed agent for the Portfolios or are tendered
for redemption within seven business days after the date of confirmation of
the initial purchase of such Shares, we shall forfeit and repay to you any
portion of a sales charge reallowed by you to us with respect to such
Shares. We will not present any conditional purchase orders, and we
understand that no conditional orders will be accepted by the Fund or its
agents. We agree that purchase orders placed by us will be made only for
the purpose of covering purchase orders already received from our
customers. Further, we shall not withhold the placement of such orders so
as to profit ourselves; provided, however, that the foregoing shall not
prevent the purchase of Shares by us for our own bona fide investment.
9. Payment for purchases of Shares made by wire order from us shall be made
directly to the bank as noted in the Prospectus, as agent for the Transfer
Agent, in an amount equal to the Current Offering Price per Share being
purchased without deduction for any compensation to be paid to us. If such
payment is not received at the customary or required time for settlement of
the transaction, we understand that you reserve the right, without notice,
forthwith, to cancel the sale, in which case we may be held responsible for
any loss, including loss of profit, suffered by the Fund or you resulting
from our failure to make the aforesaid payment.
10. On the settlement date of each transaction, we on behalf of our customers
will remit the full purchase price, and our customer will be credited with
an investment in the Shares of the Fund equal to such purchase price.
11. We acknowledge that you are required under the Plan to provide to the Board
of Trustees of the Fund, and the Board will review, at least quarterly, a
written report of the amounts so expended and the purposes for which such
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expenditures were made. We agree to furnish you and the Fund with such
information as may reasonably be requested (including, without limitation,
periodic certifications confirming the provision to Customers of the
services described herein), and will otherwise cooperate with you in
connection with preparation of reports to the Board of Trustees concerning
this Agreement and the monies paid or payable by you pursuant hereto, as
well as any other reports or filings that may be required by law.
12. We represent, warrant and agree that: (i) the compensation payable to us
hereunder, together with any other compensation payable to us by Customers
in connection with the investment of their assets in Shares will be
disclosed by us to our Customers, will be authorized by our Customers and
will not result in an excessive or unreasonable fee to us; and (ii) in the
event an issue pertaining to this Agreement or the Plan is submitted for
shareholder approval, we will vote any Shares held for our own account in
the same proportion as the vote of the Shares held for our Customers'
accounts.
If we are providing distribution services as described in Section 2(a)
hereof, we certify (a) that we are a member of the NASD and agree to
maintain membership in the NASD or (b) in the alternative, that we are a
foreign dealer not eligible for membership in the NASD. In either case, we
agree to abide by all the rules and regulations of the SEC and the NASD,
including, without limitation, Rule 2830 of the NASD Conduct Rules, all of
which are incorporated herein as if set forth in full. We further agree to
comply with all applicable state and Federal laws and the rules and
regulations of authorized regulatory agencies. We agree that we will not
sell or offer for sale Shares in any state or jurisdiction where they have
not been qualified for sale. You will make available to us a current list
of the jurisdictions in which the Shares are qualified for sale, but you
shall have no obligation or responsibility to make Shares available for
sale to our customers in any jurisdiction. We agree to notify you
immediately in the event of our expulsion or suspension from the NASD.
13. We will offer and sell the Shares only in accordance with the terms and
conditions of the current Prospectus and Statement of Additional
Information ("SAI") and we will make no representations not included in
said Prospectus or SAI or in any authorized supplemental material supplied
by you. In connection with the offers to sell and sales of Shares, we agree
to deliver or cause to be delivered to each person to whom such offer or
sale is made, at or prior to the time of completion of such sale, a copy of
the Prospectus and, upon request, SAI of the Portfolio involved. You will
furnish us without charge reasonable quantities of Prospectuses and SAIs,
with any supplements currently in effect, and copies of current shareholder
reports of the Fund, and sales materials issued from time to time. Unless
otherwise mutually agreed in writing, you shall deliver or cause to be
delivered to each of the customers who purchase Shares through us copies of
all annual and interim reports and any other information and materials
relating to the Fund and prepared by or on behalf of you, the Fund or its
investment adviser, custodian transfer agent or dividend disbursing agent
for distribution to such customer. We may not publish any advertisement or
distribute sales literature or other written material to the public which
makes reference to you or the Fund (except material which you have
furnished to us) without your prior written approval. We agree to be
responsible for the proper instruction and training of all sales personnel
employed or registered as a broker or sales representative with us, in
order that the shares will be offered in accordance with the terms and
conditions of this Agreement, and all applicable laws, rules and
regulations. We further agree to obtain from each customer to whom we sell
Shares any taxpayer identification number certification required by Section
3406 of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, and to provide you or your designee
with timely written notice of any failure to obtain such taxpayer
identification number certification in order to enable the implementation
of any required backup withholding in accordance with Section 3406 of the
Code and the regulations thereunder.
14. We hereby represent and warrant that: (a) we are a corporation,
partnership, national association or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in
which we are organized; (b) the execution and delivery of this Agreement
and the performance of the transactions contemplated hereby have been duly
authorized by all necessary action and all other authorizations and
approvals (if any) required for our lawful execution and delivery of this
Agreement and our performance hereunder have been obtained; and (c) upon
execution and delivery by us, and assuming due and valid execution and
delivery by you, this Agreement will constitute a valid and binding
agreement, enforceable against us in accordance with its terms.
15. We agree that you, your 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 us in connection with the performance of your
obligations and duties under this Agreement, except a loss resulting from
your willful misfeasance, bad faith or negligence in the performance of
such obligations and duties, or by your reckless disregard thereof.
Neither party may assert any cause of action against the other party under
this Agreement that accrued more than two years prior to the filing of the
suit (or commencement of arbitration proceedings) alleging such cause of
action.
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Each party shall have the duty to mitigate damages for which the other
party may become responsible.
Notwithstanding anything in this Agreement to the contrary, in no event
shall you, your affiliates or any of your or their directors, officers,
employees agents or subcontractors be liable to us under any theory of
tort, contract, strict liability or other legal or equitable theory for
lost profits, exemplary, punitive, special, incidental, indirect or
consequential damages, each of which is hereby excluded by agreement of the
parties regardless of whether such damages were foreseeable or whether
either party or any entity has been advised of the possibility of such
damages.
16. We agree to indemnify you and hold you, your affiliates and the Fund and
its affiliates (including all officers, trustees, directors, employees and
agents thereof) (an "Indemnified Party") harmless from and against any and
all claims, losses, demands, liabilities or expenses (including reasonable
attorney's fees) of any sort or kind which may be asserted against an
Indemnified Party for which an Indemnified Party may be held liable in
connection with this Agreement (a "Claim") unless such Claim resulted from
a negligent act or omission to act or bad faith by you in the performance
of your duties hereunder. All expenses which we incur in connection with
our activities under this Agreement shall be borne by us.
17. Your obligations to us under this Agreement are subject to all applicable
provisions of any Distribution Agreement entered into between you and the
Fund. We understand and agree that in performing our services covered by
this Agreement we are acting as agent for the customer, and you are in no
way responsible for the manner of our performance or for any of our acts or
omissions in connection therewith.
18. We may terminate this Agreement by notice in writing to you, which
termination shall become effective sixty (60) days after the date of
mailing such notice to you. We agree that you have and reserve the right,
in your sole discretion, to modify, amend or cancel this Agreement upon
written notice to us of such modification, amendment or cancellation, which
shall be effective on the date stated in such notice. This Agreement may be
terminated with respect to a Fund or a class of Shares thereof at any time,
without payment of any penalty, by vote of a majority of the Disinterested
Trustees (as defined in the Plan), or by vote of a majority of the class of
Shares of such Fund for which services are provided hereunder, on not more
than 60 days' written notice. This Agreement shall terminate automatically
in the event of its assignment (as such term is defined in the Investment
Company Act of 1940, as amended). Without limiting the foregoing, any
provision hereof to the contrary notwithstanding, if we are providing
distribution services as described in Section 2(a) hereof, our expulsion
from the NASD will automatically terminate this Agreement without notice
and our suspension from the NASD or our violation of applicable state or
Federal laws or rules and regulations of an authorized regulatory agencies
will terminate this Agreement effective upon the date of your mailing
notice to us of such termination. Without limiting the foregoing, you may
terminate this Agreement for cause on violation by us of any of the
provisions of this Agreement, said termination to become effective on the
date of mailing notice to us of such termination. Waiver of any breach of
any provision of this Agreement will not be construed as a waiver of the
provision or of your right to enforce said provision thereafter. Your
failure to terminate for any cause shall not constitute a waiver of your
right to terminate at a later date for any such cause. All notices
hereunder shall be to the respective parties at the addresses listed
hereon, unless changed by notice given in accordance with this Agreement.
19. Notwithstanding anything in this Agreement to the contrary, we agree 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 hereunder is for the specific purpose of
permitting us to perform the services set forth in this Agreement. We agree
that, with respect to such information, we will comply with Regulation S-P
and the Act and that we 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.
20. We shall have policies and procedures in place in order to comply with the
provisions of the Money Laundering Abatement Act, US Patriot Act and the
Bank Secrecy Act, and any other Anti-Money Laundering law, rule or
regulation appropriate to us.
21. We hereby certify that to the best of our knowledge after reasonable
inquiry, our firm is following all requirements, rules and regulations in
connection with our handling of orders for transactions in the Fund,
including:
o Rule 22c-1(a) under the Investment Company Act of 1940, as amended, as
required by NASD Rules 2110 and 2120;
o The provisions of our firm's agreement with you or your affiliates
that relate to offering Fund shares in accordance with prospectus
requirements and the placement of orders with you or the Fund's
transfer agent for purchases or redemptions of Fund shares;
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o The Fund's prospectus provisions regarding the purchase and redemption
of Fund shares and market timing policies; and
o Our firm's internal policies and procedures which we believe to be
appropriate and sufficient with regard to the handling of Fund orders
on a timely basis.
22. At all times during which we sell and/or service shares of the Fund, we
will remain in compliance with all regulations to which we are subject
issued under the USA PATRIOT Act, and NASD Rules and/or NYSE Rules (as
applicable) relating thereto, including without limitation rules requiring
us to implement an Anti-money Laundering Program and a Customer
Identification Program ("CIP"). We will, upon your reasonable request, not
more than once each year, certify to you that we remain in compliance with
such rules; specifically, that we (i) provide notice of our CIP to all new
customers, (ii) obtain required identifying data elements for each
customer, (iii) reasonably verify the identity of each new customer (using
the data elements), (iv) take appropriate action with respect to persons
the identities of whom we can't verify, and (v) retain all records for
required time periods, each at least to an extent required by relevant USA
PATRIOT Act regulation and NASD Rules and/or NYSE Rules, as applicable.
23. This Agreement shall become effective as of the date when it is executed
and dated by you below and shall be in substitution of any prior agreement
between you and us covering the Fund. This Agreement and all the rights and
obligations of the parties hereunder shall be governed by and construed
under the laws of the Commonwealth of Pennsylvania. This Agreement is not
assignable or transferable, except that your firm may assign or transfer
this Agreement to any successor firm or corporation which becomes the
Distributor of the Fund.
Accepted and Agreed to:
Name of Firm:__________________________________________________________________
Address:_______________________________________________________________________
City_____________ State_____ Zip_______ Telephone Number_______________
Printed Name of Authorized Officer______________ Title_________________
Authorized Officer Signature____________________ Date:_________________
SEC Broker Dealer Res. #. __________
NASD Firm CRD #. __________
Tax ID # #. __________
Accepted:
PFPC Distributors, Inc.
By:______________________________
Date: ___ day of __________, 200_
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SCHEDULE A
WILSHIRE VARIABLE INSURANCE TRUST
---------------------------------
GROWTH FUND
BALANCED FUND
INCOME FUND
SHORT-TERM INVESTMENT FUND
SMALL CAP GROWTH FUND
INTERNATIONAL EQUITY FUND
SOCIALLY RESPONSIBLE FUND
12B-1 DISTRIBUTION & COMPENSATION PLAN
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Distribution and Services Plan Guidelines and Payout:
Wilshire Variable Funds: .25% annually of the Fund's average daily net assets
maintained and serviced by the servicing agent
Plan Parameters:
Payments are calculated and paid out monthly.
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PFPC DISTRIBUTORS, INC.
KNOW YOUR CUSTOMER QUESTIONNAIRE FOR INTERMEDIARIES
In response to the requirements of The Patriotic Act, PFPC Distributors, Inc. is
required to "Know Our Customers." We request your cooperation with compliance
and ask you to complete in total the information below and return to PFPC with
the executed agreement.
Thank you,
PFPC Distributors, Inc.
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_________________________________________________
Name of Institution
_________________________________________________
Taxpayer Identification Number
_________________________________________________
Type of Business
_________________________________________________
State in Which Corporation is Domiciled
_________________________________________________
Date of Incorporation
_________________________________________________
Regulatory Body with Oversight Authority
_________________________________________________
Other Information (or attachments noted)
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