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EXHIBIT 99-E
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ____ day of _______, 1998 (the
"Agreement") by and between Worldwide Index Funds, a Massachusetts business
trust (the "Fund") and First Data Distributors, Inc. (the "Distributor"), a
Massachusetts corporation.
WHEREAS, the Fund is registered as a diversified, 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 Schedule 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 desires to retain the Distributor as distributor for
the Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Schedule A and for such additional classes or series as
the Fund may issue, and the Distributor is prepared to provide such services
commencing on the date first written above.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein and intending to be legally bound hereby the parties hereto agree
as follows:
1. SERVICE AS DISTRIBUTOR
1.1 The Distributor will act on behalf of the Fund for the distribution of
the Shares covered by the Registration Statement under the Securities Act
of 1933, as amended (the "1933 Act") and provide the distribution
services outlined in Schedule B to this Agreement. The Distributor 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.
1.2 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. The Distributor shall have no duty to
inquire into, or liability for, the accuracy of the net asset value per
Share as calculated.
1.3 The Distributor agrees to use efforts deemed appropriate by the
Distributor 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 the Distributor
receives fees under any plan adopted by the Fund pursuant to Rule 12b-1
under the 1940 Act, the Distributor 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 the Distributor receives shareholder services
fees under any shareholder services plan adopted by the Fund, the
Distributor
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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 the Distributor 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. The Distributor will require each
dealer with whom the Distributor has a selling agreement to conform to
the applicable provisions of the Prospectus, with respect to the public
offering price of the Shares, and the Distributor shall not cause the
Fund to withhold the placing of purchase orders so as to make a profit
thereby.
1.4 The Fund understands that the Distributor 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 the Distributor's duties to such Investment Entities shall
not be deemed in conflict with its duties to the Fund under this Section
1.4.
1.5 The Distributor 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 Fund agrees to furnish the Distributor with sufficient
copies of any and all: agreements, plans, communications with the public
or other materials which the Fund intends to use in connection any sales
of Shares, in adequate time for the Distributor to file and clear such
materials with the proper authorities before they are put in use. The
Distributor 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 the Distributor.
1.6 All activities by the Distributor and its employees, as distributor of
the Shares, shall comply with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted
by the SEC or the National Association of Securities Dealers.
1.7 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund.
1.8 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 the Distributor
promptly of such determination.
1.9 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
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qualification of the Shares for sale in such states as the Distributor
may designate. The Fund shall notify the Distributor in writing of the
states in which the Shares may be sold and shall notify the Distributor
in writing of any changes to the information contained in the previous
notification.
1.10 The Fund shall furnish from time to time, for use in connection with the
sale of the Shares, such information with respect to the Fund and the
Shares as the Distributor may reasonably request; and the Fund warrants
that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Fund shall also
furnish the Distributor upon request with: (a) audited annual statements
and unaudited semi-annual statements of a Portfolio's books and accounts
prepared by the Fund, (b) quarterly earnings statements prepared by the
Fund, (c) a monthly itemized list of the securities in the Portfolios,
(d) monthly balance sheets as soon as practicable after the end of each
month, and (e) from time to time such additional information regarding
the financial condition of the Fund as the Distributor may reasonably
request.
1.11 The Fund represents to the Distributor 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. As used in this Agreement, the term "Registration Statement"
shall mean 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. Except as to information included in the Registration Statement in
reliance upon information provided to the Fund by the Distributor or any
affiliate of the Distributor expressly for use in the Registration
Statement, the Fund represents and warrants to the Distributor 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. The Fund may but shall not be obligated to
propose from time to time such amendment or 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 Fund's counsel, be necessary or advisable. The Fund shall promptly
notify the Distributor 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 the Distributor to do so,
the Distributor 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 the Distributor 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
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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 the Distributor 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.
1.12 No Shares shall be offered by either the Distributor 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 Section 1.12 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,
Articles of Incorporation, or bylaws.
1.13 The Fund agrees to advise the Distributor as soon as reasonably practical
by a notice in writing delivered to the Distributor:
(a) of any request by the SEC for amendments to the Registration
Statement, Prospectus or Statement of Additional Information then
in effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement,
Prospectus or Statement of Additional Information then in effect
or the initiation by service of process on the Fund of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of a
material fact made in the Registration Statement, Prospectus or
Statement of Additional Information then in effect or that
requires the making of a change in such Registration Statement,
Prospectus or Statement of Additional Information in order to make
the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to any
Registration Statement, Prospectus or Statement of Additional
Information which may from time to time be filed with the SEC.
For purposes of this section, informal requests by or acts of the Staff
of the SEC shall not be deemed actions of or requests by the SEC.
1.14 The Fund represents and warrants to the Distributor 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.
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2. COMPENSATION AND EXPENSES
2.1 The Fund will bear the following expenses:
(a) preparation, printing and distribution of sufficient copies of the
Prospectus and SAI for to shareholders;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal and state securities
laws;
(d) maintaining facilities for the issue and transfer of Shares;
(e) supplying information, prices and other data to be furnished by
the Fund under this Agreement;
(f) any original issue taxes or other transfer taxes applicable to the
sale or delivery of the Shares or certificates therefor; and
(g) any filing fees associated with the submission of sales material
to the NASD or any state authority.
The Fund will pay all other expenses incident to the sale and
distribution of the Shares sold hereunder.
3. INDEMNIFICATION
3.1 The Fund agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the
Distributor 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 the Distributor, its officers,
directors, employees or any such controlling 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
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by the Distributor 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 you, your officers and
directors, or such controlling person, may incur in connection with this
Agreement or the Distributor's 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, 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 the Distributor's willful
misfeasance, bad faith or negligence in the performance of the
Distributor's duties hereunder. The Fund acknowledges and agrees that in
the event that the Distributor, at the request of the Fund, are required
to give indemnification comparable to that set forth in this Section 3.1
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 the
Distributor, the Distributor shall make a similar claim for
indemnification against the Fund.
The Fund will indemnify the Distributor against and hold it harmless from
any and all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any sort or
kind which may be asserted against the Distributor for which the
Distributor may be held to be liable in connection with this Agreement or
the Distributor's performance hereunder (a "Claim"), unless such Claim
resulted from a negligent act or omission to act or bad faith by the
Distributor in the performance of its duties hereunder.
3.2 The Distributor 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 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 the Distributor or its affiliated
persons (as defined in the 1940 Act). The Distributor also agrees to
indemnify and hold harmless
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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 the Distributor'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.
3.3 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 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
the Distributor 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.
3.4 The obligations of the parties hereto under this Section 3 shall survive
the termination of this Agreement. The Fund's indemnification agreement
contained in this Section 3 and the Fund's representations and warranties
in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Distributor,
its officers, directors and employees, or any controlling person, and
shall survive the delivery of any Shares. This agreement of indemnity
will inure exclusively to the Distributor's benefit, to the benefit of
its several officers, directors and employees, and their respective
estates and to the benefit of the controlling persons and their
successors.
4. STANDARD OF CARE; LIMITATION OF LIABILITY
4.1 The Distributor shall not be liable to the Fund for any error of judgment
or mistake of law or for any loss suffered by the Fund in connection with
the performance of its obligations
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and duties under this Agreement, except a loss resulting from the
Distributor's willful misfeasance, bad faith or negligence in the
performance of such obligations and duties, or by reason of its reckless
disregard thereof.
4.2 Notwithstanding any provision in this Agreement to the contrary, the
Distributor's cumulative liability (to the Fund) for all losses, claims,
suits, controversies, breaches, or damages ("Liability Claims") for any
cause whatsoever and regardless of the form of action or legal theory,
shall not exceed $500,000. The Fund understands the limitation on the
Distributor's damages to be a reasonable allocation of risk and the Fund
expressly consents with respect to such allocation of risk.
4.3 Neither party may assert any cause of action against the other party
under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings) alleging
such cause of action.
4.4 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
4.5 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL THE DISTRIBUTOR, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY
OF TORT, CONTRACT, STRICT LIABILITY OF 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.
5. EXCLUSION OF WARRANTIES
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE COMPANY, A PORTFOLIO 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. THE DISTRIBUTOR DISCLAIMS ANY WARRANTY OF
TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
6. TERM
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6.1 This Agreement shall become effective on the date first written above
and, unless sooner terminated as provided herein, shall continue for an
initial two-year term 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 the Distributor. This Agreement will
also terminate automatically in the event of its assignment (as defined
in the 1940 Act and the rules thereunder).
6.2 In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion thereof
will be borne by the Fund.
7. MODIFICATIONS AND WAIVERS
No change, termination, modification, or waiver of any term or condition
of the Agreement shall be valid unless in writing signed by each party.
No such writing shall be effective as against the Distributor unless said
writing is executed by a Senior Vice President, Executive Vice President
or President of the Distributor. A party's waiver of a breach of any term
or condition in the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or condition.
8. NO PRESUMPTION AGAINST DRAFTER
The Distributor and the Fund have jointly participated in the negotiation
and drafting of this Agreement. The Agreement shall be construed as if
drafted jointly by the Fund and the Distributor, and no presumptions
arise favoring any party by virtue of the authorship of any provision of
this Agreement.
9. PUBLICITY
Neither the Distributor nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating
to this Agreement or to the transactions contemplated by it without prior
review and written approval of the other party; provided, however, that
either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable efforts in
the circumstances to consult in advance with the other party.
10. SEVERABILITY
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The parties intend every provision of this Agreement to be severable. If
a court of competent jurisdiction determines that any term or provision
is illegal or invalid for any reason, the illegality or invalidity shall
not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties. Without limiting the
generality of this paragraph, if a court determines that any remedy
stated in this Agreement has failed of its essential purpose, then all
other provisions of this Agreement, including the limitations on
liability and exclusion of damages, shall remain fully effective.
11. FORCE MAJEURE
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire, flood, elements of
nature or other acts of God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any country, (iii) any act
or omission of the other party or any governmental authority; (iv) any
labor disputes (whether or not the employees' demands are reasonable or
within the party's power to satisfy); or (v) nonperformance by a third
party or any similar cause beyond the reasonable control of such party,
including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the
non-performing party shall be excused from any further performance and
observance of the obligations so affected only for so long as such
circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
12. MISCELLANEOUS
12.1 Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or the Distributor shall be
sufficiently given if addressed to the party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Fund:
Worldwide Index Funds
000 X. Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: F. Xxxxx Xxxxxx
To the Distributor:
First Data Distributors, Inc.
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0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to the Distributors Chief Legal Officer
12.2 The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, and the applicable provisions of the 1940 Act shall
govern the interpretation, validity, and enforcement of this Agreement.
To the extent the provisions of Massachusetts law or the provisions
hereof conflict with the 1940 Act, the 1940 Act shall control. All
actions arising from or related to this Agreement shall be brought in the
state and federal courts sitting in the City of Boston, and the
Distributor and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts
12.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
12.4 The captions of 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.
12.5 This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and is not intended to
confer upon any other person any rights or remedies hereunder.
13. CONFIDENTIALITY
13.1 The parties agree that the Proprietary Information (defined below) and
the contents of this Agreement (collectively "Confidential Information")
are confidential information of the parties and their respective
licensers. The Fund and the Distributor shall exercise reasonable care to
safeguard the confidentiality of the Confidential Information of the
other. The Fund and the Distributor may each use the Confidential
Information only to exercise its rights or perform its duties under this
Agreement. The Fund and the Distributor shall not duplicate, sell or
disclose to others the Confidential Information of the other, in whole or
in part, without the prior written permission of the other party. The
Fund and the Distributor may, however, disclose Confidential Information
to its employees who have a need to know the Confidential Information to
perform work for the other, provided that each shall use reasonable
efforts to ensure that the Confidential Information is not duplicated or
disclosed by its employees in breach of this Agreement. The Fund and the
Distributor may also disclose the Confidential Information to independent
contractors, auditors and professional advisors, provided they first
agree in writing to be bound by the confidentiality obligations
substantially similar to this Section 13. Notwithstanding the previous
sentence, in no event shall either the Fund or the
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Distributor disclose the Confidential Information to any competitor of
the other without specific, prior written consent.
13.2 Proprietary Information means:
(a) any data or information that is completely sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Fund or the Distributor,
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 the
Distributor a competitive advantage over its competitors: and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
13.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either
party which now exist or come into the control or possession of the
other.
13.4 The Fund acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information would result
in immediate and irreparable harm, and money damages would be inadequate
to compensate the Distributor for that harm. The Distributor shall be
entitled to equitable relief, in addition to all other available
remedies, to redress any such breach.
13.5 The obligations of confidentiality and restriction on use herein shall
not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such party;
or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
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(d) Is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not limited
to, giving the other party as much advance notice of the possibility of
such disclosure as practical so the other party may attempt to stop such
disclosure or obtain a protective order concerning such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Confidential
Information disclosed under this Agreement.
14. ENTIRE AGREEMENT
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or oral,
between the parties with respect to the subject matter hereof.
15. BOARD MEMBER LIABILITY
The Fund and the Distributor agree that the obligations of the Fund under
the Agreement shall not be binding upon any of the Board Members,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only upon
the assets and property of the Fund, as provided in the Articles of
Incorporation. The execution and delivery of this Agreement have been
authorized by the Board Members of the Fund, and signed by an authorized
officer of the Fund, acting as such, and neither such authorization by
such Board Members nor such execution and delivery by such officer shall
be deemed to have been made by any of them or any shareholder of the Fund
individually or to impose any liability on any of them or any shareholder
of the Fund personally, but shall bind only the assets and property of
the Fund as provided in the Articles of Incorporation.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
WORLDWIDE INDEX FUNDS
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
FIRST DATA DISTRIBUTORS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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SCHEDULE A
NAME OF PORTFOLIOS
Australia Index Fund
France Index Fund
Germany Index Fund
Hong Kong Index Fund
Italy Index Fund
Japan Index Fund
Netherlands Index Fund
Spain Index Fund
Sweden Index Fund
Switzerland Index Fund
United Kingdom Index Fund
Europe Index Fund
International Index Fund
S-1
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SCHEDULE B
DISTRIBUTION SERVICES
Services shall include:
1. Preparation and execution of sales or servicing agreements
monitoring accruals
monitoring expenses
making disbursements for expenses and fees
2. Quarterly 12b-1 Reports to the Board
3. Literature review, recommendations and submission to the XXXX
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