Exhibit e
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 9th day of September, 1999 (the
"Agreement") by and between BT Insurance Funds Trust, a Massachusetts business
trust (the "Trust") and Provident Distributors, Inc. (the "Distributor"), a
Delaware corporation having its principal place of business at Four Falls
Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
WHEREAS, the Trust 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 Trust identified on Schedule A hereto (the "Funds")
which are registered with the Securities and Exchange Commission (the "SEC")
pursuant to the Trust's Registration Statement on Form N-1A (the "Registration
Statement"); and
WHEREAS, the Trust desires to retain the Distributor as distributor for
the Funds to provide for the sale and distribution of the Shares of the Funds
identified on Schedule A to separate accounts of insurance companies and for
such additional classes or series as the Trust 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 Trust for the distribution of
the Shares covered by the Registration Statement under the Securities
Act of 1933, as amended (the "1933 Act"). In accordance with its duties
as Distributor of the Shares under this Agreement, the Distributor has
agreed to enter into participation agreements with insurance companies
for the sale of Shares.
1.2 The Trust 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 Trust. The Trust further understands that investors and
potential investors in the Trust may invest in shares of such other
Investment Entities. The Trust agrees that the Distributor's duties to
such Investment Entities shall not be deemed in conflict with its
duties to the Trust under this Section 1.2.
1.3 The Distributor shall not utilize any materials in connection with the
sale or offering of Shares except the Trust's current prospectuses and
statements of additional information and such other materials as the
Trust shall provide or approve.
1.4 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.
1.5 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Trust.
1.6 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions, the Trust may decline to accept any
orders for, or make any sales of, the Shares until such time as the
Trust deems it advisable to accept such orders and to make such sales.
1.7 The Trust shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Trust and
the Shares as the Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent.
1.8 The Trust represents to the Distributor that all Registration
Statements and prospectuses filed by the Trust 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 Trust 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
Trust by the Distributor or any affiliate of the Distributor, the Trust
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 Trust 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 Trust's counsel, be
necessary or advisable. The Trust 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 Trust shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the
Trust of a written request from the Distributor to do so, the
Distributor may, at its option, terminate this Agreement upon written
notice to the Trust. The Trust 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 Trust's right to file at any time such amendments to any
Registration Statements and/or supplements to any prospectus, of
whatever character, as the Trust may deem advisable, such right being
in all respects absolute and unconditional.
1.9 The Trust 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.
1.10 (a) Subject to the conditions set forth below, the Trust agrees to
indemnify and hold harmless the Distributor and each person, if any,
who controls the Distributor within the meaning of Section 15 of the
Securities Act of 1933 and Section 20 of the Securities Exchange Act of
1934, as amended, against any and all loss, liability, claim, damage
and expense whatsoever (including reasonable attorneys' fees) arising
out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any
Prospectuses or SAIs (as from time to time amended or supplemented) or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, unless such statement or omission was made in reliance upon
and in conformity with written information furnished to the Trust by
the Distributor or on behalf of the Distributor expressly for use in
the Registration Statement, any Prospectuses or SAIs or any amendment
or supplement thereof.
If any action is brought against the Distributor or any
controlling person thereof with respect to which indemnity may be
sought against the Trust pursuant to the foregoing paragraph, the
Distributor shall promptly notify the Trust in writing of the
institution of such action and the Trust shall assume the defense of
such action, including the employment of counsel selected by the Trust
and payment of expenses. The Distributor or any such controlling person
thereof shall have the right to employ separate counsel in any such
case, but the fees and expenses of such counsel shall be at the expense
of the Distributor or such controlling person unless the employment of
such counsel shall have been authorized in writing by the Trust in
connection with the defense of such action or the Trust shall not have
employed counsel to have charge of the defense of such action, in any
of which events such fees and expenses shall be borne by the Trust.
Anything in this paragraph to the contrary notwithstanding, the Trust
shall not be liable for any settlement of any such claim of action
effected without its written consent. The Trust agrees promptly to
notify the Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or Trustees or
controlling persons in connection with the issue and sale of Shares in
connection with the Registration Statement, Prospectuses or SAIs.
(b) The Distributor agrees to indemnify and hold harmless the Trust,
each of its Trustees, each of its officers who have signed the
Registration Statement and each other person, if any, who controls the
Trust within the meaning of Section 15 of the Securities Act of 1933,
against any and all loss, liability, claim, damage and expense
whatsoever (including reasonable attorneys' fees) arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Prospectuses
or SAIs (as from time to time amended or supplemented) or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with respect to alleged statements or alleged omissions or
statements or omissions, if any, made in the Registration Statement,
any Prospectus, SAI, or any amendment or supplement thereof in reliance
upon, in conformity with, written information furnished to the Trust by
the Distributor or on behalf of the Distributor expressly for use in
the Registration Statement or any Prospectus, SAI, or any amendment or
supplement thereof. In case any action shall be brought against the
Trust or any other person so indemnified based upon the Registration
Statement or any Prospectus, SAI, or any amendment or supplement
thereof, and with respect to which indemnity may be sought against the
Distributor, the Distributor shall have the rights and duties given to
the Trust, and the Trust and each other person so indemnified shall
have the rights and duties given to the Distributor by the provisions
of subsection (a) above.
(c) Nothing herein contained shall be deemed to protect any person
against liability to the Trust or its shareholders to which such person
would otherwise be subject by reason of willful misfeasance, bad faith
or negligence in the performance of the duties of such person or by
reason of the reckless disregard by such person of the obligations and
duties of such person under this Agreement.
1.11 No Shares shall be offered by either the Distributor or the Trust under
any of the provisions of this Agreement and no orders for the purchase
or sale of Shares hereunder shall be accepted by the Trust 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 1.11
shall in any way restrict or have any application to or bearing upon
the Trust's obligation to redeem Shares tendered for redemption by any
shareholder in accordance with the provisions of the Trust's
Registration Statement, Declaration of Trust, or bylaws.
1.12 The Trust 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 Trust 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.
2. Limitation of Liability.
(a) Subject to the provisions of Section 1.10, the Distributor, its
directors, officers, employees, shareholders and agents shall not be
liable for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with the performance of its
obligations 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.
(b) Each party shall have the duty to mitigate damages for which the
other party may become responsible.
(c) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY HERETO, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE
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.
3. Term
(a) This Agreement shall become effective immediately upon the
consummation of the acquisition of First Data Investor Services Group,
Inc. by a subsidiary of PNC Bank Corp., which the parties anticipate to
occur on or about December 1, 1999, and, unless sooner terminated as
provided herein, shall continue for an initial one-year term and
thereafter shall be renewed for successive one-year terms, provided
such continuance is specifically approved at least annually by (i) the
Trust's Board of Trustees 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 Trust, provided that in either event the continuance
is also approved by a majority of the Trustees 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 Trust's Board of Trustees, by vote of a majority
(as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the Trust, 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).
(b) In the event a termination notice is given by the Trust, all
expenses associated with movement of records and materials and
conversion thereof will be borne by the Trust.
4. 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 FUND 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.
5. 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.
6. No Presumption Against Drafter
The Distributor and the Trust have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Trust and the Distributor, and
no presumptions arise favoring any party by virtue of the authorship of
any provision of this Agreement.
7. Publicity
Neither the Distributor nor the Trust 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.
8. Severability
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.
9. 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; or (iv) 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.
10. Miscellaneous
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Trust 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 Trust:
c/o BT Insurance Funds Trust
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
With a copy to:
Xxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To the Distributor:
Provident Distributors, Inc.
Four Falls Corporate Center, 0xx Xxxxx
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx
(b) The laws of the State of New York, 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 New York
law or the provisions hereof conflict with the 1940 Act, the
1940 Act shall control.
(c) 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.
(d) 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.
(e) 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.
11. Confidentiality
(a) 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
Trust and the Distributor shall exercise reasonable care to safeguard the
confidentiality of the Confidential Information of the other. The Trust and the
Distributor may each use the Confidential Information only to exercise its
rights or perform its duties under this Agreement. Except as required by law,
the Trust 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 Trust and the Distributor may,
however, disclose Confidential Information to its employees, auditors, counsel,
regulatory authorities and others agreed to by the Trust and the Distributor 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 Trust and the Distributor may also disclose the Confidential
Information to independent contractors, provided they first agree in writing to
be bound by the confidentiality obligations substantially similar to this
Section 11. Notwithstanding the previous sentence, in no event shall either the
Trust or the Distributor disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
(b) Proprietary Information means:
(i) 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 Trust or the Distributor,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(ii) 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 Trust or the Distributor a competitive advantage
over its competitors: and
(iii) 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.
(c) 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.
(d) Each Party 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 other
Party for that harm. Each Party shall be entitled to equitable
relief, in addition to all other available remedies, to
redress any such breach.
12. Binding Obligations
The Trust and the Distributor agree that the obligations of the Trust
under the Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Trust individually, but are binding only upon
the assets and property of the Trust, as provided in the Declaration of
Trust of the Trust dated January 19, 1996 as filed with the
Commonwealth of Massachusetts. The execution and delivery of this
Agreement have been authorized by the Trustees of the Trust, and signed
by an authorized officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them or any
shareholder of the Trust individually or to impose any liability on any
of them or any shareholder of the Trust personally, but shall bind only
the assets and property of the Trust as provided in the Declaration of
Trust.
13. 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.
14. Declaration of Trust
The Distributor is hereby expressly put on notice of the limitation of
liability as set forth in the Declaration of Trust and agrees that the
obligations assumed by the Trust pursuant to this Agreement shall be
limited in any case to the Trust and its assets and the Distributor
shall not seek satisfaction of any such obligation from the
shareholders of the Trust, the Trustees, officers, employees or agents
of the Trust, or any of them.
15. Year 2000
The Distributor's services hereunder shall be rendered, and its
computer systems used in rendering such services shall operate and
function, without any Year 2000 Error. The term "Year 2000 Error"
means:
(a) any failure of the Distributor's systems to properly
record, store, process, calculate or present calendar dates
falling on and after (and, if applicable, spans of time
including) January 1, 2000 as a result of the occurrence or
use of data consisting of such dates;
(b) any failure of the Distributor's systems to calculate any
information dependent on or relating to dates on or after
January 1, 2000 in the same manner, and with the same
functionality, date integrity and performance, as such systems
record, store, process, calculate and present calendar dates
on or before December 31, 1999, or information dependent on or
relating to such dates; or
(c) any loss of functionality or performance with respect to
the introduction of records or processing of data containing
dates falling on or after January 1, 2000.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
BT INSURANCE FUNDS TRUST
By: /s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
PROVIDENT DISTRIBUTORS, INC.
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
SCHEDULE A
to the Distribution Agreement
between BT Insurance Funds Trust and
Provident Distributors, Inc.
Name of Funds
Managed Assets Fund
Small Cap Fund
International Equity Fund
Small Cap Index Fund
EAFE Equity Index Fund
Equity 500 Index Fund
US Bond Index Fund
BT INSURANCE FUNDS TRUST PROVIDENT DISTRIBUTORS, INC.
By: Xxxxxx X. Xxxxxxx By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: President Title: President
