EX-99.B(e)
FORM OF DISTRIBUTION AGREEMENT on
THIS AGREEMENT is made as of the _____ day of ___________, 2004 by and
between Westlakes Institutional Portfolios (the "Trust"), a Delaware Business
Trust, and Constellation Investment Distribution Company Inc. (the
"Distributor"), a New York corporation.
WHEREAS, the Trust is a registered, diversified, open-end management
investment company under the Investment Company Act of 1940, as amended
("Investment Company Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act of
1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Trust and Distributor hereby agree as follows:
ARTICLE 1. Sale of Shares. The Trust grants to the Distributor the
exclusive right to sell shares of the Portfolios at the net asset value per
share, plus any applicable sales charges in accordance with the current
prospectus, as agent and on behalf of the Trust, during the term of this
Agreement and subject to the rules and regulations of the SEC and the laws
governing the sale of securities in the various states (the "Blue Sky Laws").
ARTICLE 2. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable
efforts, consistent with its other business, in connection with the distribution
of shares of the Portfolios; provided, however, that the Distributor shall not
be prevented from entering into like arrangements with other issuers. The
provisions of this paragraph do not obligate the Distributor to register as a
broker or dealer under the Blue Sky Laws of any jurisdiction or to maintain its
registration in any jurisdiction in which it is now registered, unless it
engages in activities contemplated by this Agreement in such jurisdiction.
Nothing herein shall obligate the Distributor to sell any particular number of
shares.
ARTICLE 3. Compensation. The Distributor shall not receive any specific
compensation for its activities in marketing and selling shares.
ARTICLE 4. Authorized Representations. The Distributor is not
authorized by the Trust to give any information or to make any representations
other than those contained in the current registration statement and prospectus
of the Trust filed with the SEC or contained in shareholder reports or other
material that may be prepared by or on behalf of the Trust for the Distributor's
use. The Distributor may prepare and distribute sales literature and other
material as it may deem appropriate, provided that such
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literature and materials have been prepared in accordance with applicable rules
and regulations.
ARTICLE 5. Indemnification of Distributor. The Trust agrees to
indemnify and hold harmless the Distributor and each of its directors and
officers and each person, if any, who controls the Distributor within the
meaning of Section 15 of the Securities Act against any loss, liability, claim,
damages or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damages, or expense and reasonable counsel
fees and disbursements incurred in connection therewith), arising by reason of
any person acquiring any shares, based upon the ground that the registration
statement, prospectus, shareholder reports or other information filed or made
public by the Trust (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements made not misleading. However, the
Trust does not agree to indemnify the Distributor or hold it harmless to the
extent that the statement or omission was made in reliance upon, and in
conformity with, information furnished to the Trust by or on behalf of the
Distributor.
In no case (i) is the indemnity of the Trust to be deemed to protect
the Distributor against any liability to the Trust or its shareholders to which
the Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Trust to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Trust in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other person (or after the Distributor or the person shall
have received notice of service on any designated agent). However, failure to
notify the Trust of any claim shall not relieve the Trust from any liability
which it may have to the Distributor or any person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph.
The Trust shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Trust elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Trust
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Trust does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
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The Trust agrees to notify the Distributor promptly of the commencement
of any litigation or proceedings against it or any of its officers or Trustees
in connection with the issuance or sale of any of its shares.
ARTICLE 6. Indemnification of Trust. The Distributor covenants and
agrees that it will indemnify and hold harmless the Trust and each of its
Trustees and officers and each person, if any, who controls the Trust within the
meaning of Section 15 of the Securities Act, against any loss, liability,
damages, claim or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith) based upon the Securities Act or
any other statute or common law and arising by reason of any person acquiring
any shares, and alleging a wrongful act of the Distributor or any of its
employees or alleging that the registration statement, prospectus, shareholder
reports or other information filed or made public by the Trust (as from time to
time amended) included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in order to make the
statements not misleading, insofar as the statement or omission was made in
reliance upon and in conformity with information furnished to the Trust by or on
behalf of the Distributor.
In no case (i) is the indemnity of the Distributor in favor of the
Trust or any other person indemnified to be deemed to protect the Trust or any
other person against any liability to which the Trust or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Trust or upon any person (or after the
Trust or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Trust or any
person against whom the action is brought otherwise than on account of its
indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and satisfactory
to the indemnified defendants whose approval shall not be unreasonably withheld.
In the event that the Distributor elects to assume the defense of any suit and
retain counsel, the defendants in the suit shall bear the fees and expenses of
any additional counsel retained by them. If the Distributor does not elect to
assume the defense of any suit, it will reimburse the indemnified defendants in
the suit for the reasonable fees and expenses of any counsel retained by them.
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The Distributor 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 of the Trust's shares.
ARTICLE 7. Effective Date and Termination. This Agreement shall be
effective upon its execution, and unless terminated as provided, shall continue
in force for two years from the effective date and thereafter from year to year,
provided that such annual continuance is approved by (i) either the vote of a
majority of the Trustees of the Trust, or the vote of a majority of the
outstanding voting securities of the Trust, and (ii) the vote of a majority of
those Trustees of the Trust who are not parties to this Agreement or interested
persons of any such party ("Qualified Trustees"), cast in person at a meeting
called for the purpose of voting on the approval. This Agreement shall
automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the outstanding voting securities",
"assignment" and "interested person" shall have the respective meanings
specified in the Investment Company Act. In addition, this Agreement may at any
time be terminated without penalty by the Distributor by a vote of a majority of
Qualified Trustees or by vote of a majority of the outstanding voting securities
of the Trust upon not less than 30 days prior written notice to the other party.
ARTICLE 8. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party giving
notice: if to the Trust, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxx 00000 Attention: President, and if to the Distributor, 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 Attention: President.
ARTICLE 9. Limitation of Liability. A copy of the Certificate of Trust
is on file with the Secretary of State of the State of Delaware, and notice is
hereby given that this Agreement is executed on behalf of the Trustees of the
Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders of
the Trust individually but binding only upon the assets and property of the
Trust.
ARTICLE 10. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware and the applicable provisions
of the Investment Company Act. To the extent that the applicable laws of the
State of Delaware, or any of the provisions herein, conflict with the applicable
provisions of the Investment Company Act, the latter shall control.
ARTICLE 11. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
WESTLAKES INSTITUTIONAL PORTFOLIOS
By: _______________________
Attest: _______________________
CONSTELLATION INVESTMENT DISTRIBUTION COMPANY INC.
By: _______________________
Attest: _______________________
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