DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 3rd day of October, 1995
by and between
Panorama Trust (the "Trust") and 440 Financial Distributors, Inc.
(the "Distributor"), a
corporation organized under the laws of the Commonwealth of
Massachusetts, having its
principal place of business at 000 Xxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Trust is registered as an open-end, diversified
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
("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 Fund to
provide for the sale and distribution of the Shares of the Funds
identified on Schedule A, and
for such additional classes or series as the Trust may issue, and
the Distributor is prepared to
provide such services commencing on October 3, 1995.
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"). 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 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. 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 "Companies")
including Companies
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 Companies. The Trust agrees that the Distributor's
duties to such
Companies shall not be deemed in conflict with its duties to the
Trust under this
paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance
appropriate agreed upon activities
which it deems reasonable which are primarily intended to result
in the sale of the
Shares, including, but not limited to, the printing and mailing of
prospectuses to other
than current shareholders.
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 pursuant to the 1940 Act 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 their 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 those officers deem it advisable
to accept such orders
and to make such sales.
1.7 The Trust agrees at its own expense 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 qualification of the Shares for
sale in such states as the
Distributor may designate.
1.8 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.
The Trust shall also furnish the Distributor upon request with:
(a) audited annual
statements and unaudited semi-annual statements of a Fund's books
and accounts
prepared by the Trust, (b) quarterly earnings statements prepared
by the Trust, (c) a
monthly itemized list of the securities in the Funds, (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 Trust as the
Distributor may
reasonably request.
1.9 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 said 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 said Commission.
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. 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.
1.10 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. The Trust 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 from and
against any and all
claims, demands, liabilities and expenses (including the cost of
investigating or
defending such claims, demands or liabilities and any legal fees
incurred in connection
therewith) 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:
(a) any untrue statement, or alleged untrue statement, of a
material fact contained in
the Trust's Registration Statement, prospectus, statement of
additional information, or
sales literature (including amendments and supplements thereto),
or
(b) any omission, or alleged omission, to state a material fact
required to be stated
in the Trust'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 Trust by the
Distributor or its affiliated
persons for use in the Trust's Registration Statement, prospectus,
or statement of
additional information or sales literature (including amendments
or supplements
thereto), such indemnification is not applicable.
The Distributor, its officers, directors, and employees, and
any such controlling
person, as aforesaid, shall notify the Trust of any action brought
against the
Distributor, its officers, directors or employees, or any such
controlling person, such
notification to be given by letter or by telegram addressed to the
Trust at its principal
office in Boston, Massachusetts and sent to the Trust by the
person against whom such
action is brought, within 10 days after the summons or other first
legal process shall
have been served. The failure to notify the Trust of any such
action shall not relieve
the Trust from any liability which the Trust may have to the
person against whom such
action is brought by reason of any such untrue, or allegedly
untrue, statement or
omission, or alleged omission, otherwise than on account of the
Trust's indemnity
agreement contained in this paragraph 1.10. The Trust will be
entitled to assume the
defense of any suit brought to enforce any such claim, demand or
liability, but, in such
case, such defense shall be conducted by counsel of good standing
chosen by the Trust
and approved by the Distributor, which approval shall not
unreasonably be withheld.
In the event the Trust elects to assume the defense of any such
suit and retain counsel
of good standing approved by the Distributor, the defendant or
defendants in such suit
shall bear the fees and expenses of any additional counsel
retained by any of them; but
in case the Trust does not elect to assume the defense of any such
suit, or in case the
Distributor reasonably does not approve of counsel chosen by the
Trust, or in case
there is a conflict of interest between the Trust or the
Distributor, the Trust will
reimburse the Distributor, its officers, directors and employees,
or the controlling
person or persons named as defendant or defendants in such suit,
for the fees and
expenses of any counsel retained by the Distributor or them. The
Trust's
indemnification agreement contained in this paragraph 1.10 and the
Trust'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. 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 in
connection with the issue and sale of any Shares.
1.11 The Distributor agrees to indemnify and hold harmless the
Trust, its several officers
and trustees and each person, if any, who controls a Fund within
the meaning of
Section 15 of the 1933 Act against any loss, claims, damages,
liabilities and expenses
(including the cost of any reasonable legal fees incurred in
connection therewith) which
the Trust, its officers, trustees 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 Trust, its officers or
trustees, 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 Trust'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 Trust by the Distributor
or its affiliated persons
(as defined in the 1940 Act).
The agreement of the Distributor to indemnify the Trust, its
officers and trustees, and
any such controlling person, as aforesaid, is expressly
conditioned upon the Distributor
being notified of any action brought against the Trust, its
officers or trustees, or any
such controlling person, such notification to be given by letter
or telegram addressed to
the Distributor at its principal office in Marlboro,
Massachusetts, and sent to the
Distributor by the person against whom such action is brought,
within 10 days after the
summons or other first legal process shall have been served. The
Distributor shall have
the right of first control of the defense of such action, with
counsel of its own
choosing, satisfactory to the Trust, if such action is based
solely upon such alleged
misstatement or omission on the Distributor's part, and in any
other event the Trust, it
officers or trustees or such controlling person shall each have
the right to participate in
the defense or preparation of the defense of any such action. The
failure so to notify
the Distributor of any such action shall not relieve the
Distributor from any liability
that the Distributor may have to the Trust, its officers or
trustees, or to such controlling
person by reason of any such untrue, or alleged untrue, statement
or omission, or
alleged omission, otherwise than on account of the Distributor's
indemnity agreement
contained in this paragraph 1.11.
1.12 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 said Act is not on
file with the SEC;
provided, however, that nothing contained in this paragraph 1.12
shall in any way
restrict or have any application to or bearing upon the Trust's
obligation to repurchase
Shares from any shareholder in accordance with the provisions of
the Trust's
Registration Statement, Declaration of Trust, or bylaws.
1.13 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.
1.14 The Distributor agrees on behalf of itself and its
directors, officers and employees to
treat confidentially and as proprietary information of the Trust
all records and other
information relative to the Trust and its prior, present or
potential shareholders, and not
to use such records and information for any purpose other than
performance of its
responsibilities and duties hereunder, except after prior
notification to and approval by
the Trust, which approval shall not be unreasonably withheld and
may not be withheld
where the Distributor may be exposed to civil or criminal contempt
proceedings for
failure to comply, when requested to divulge such information by
duly constituted
authorities, or when so requested by the Trust.
2. Term
This Agreement shall become effective on October 3, 1995
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 Trust's Board
of Trustees or (ii) by a
vote of a majority (as defined in the 0000 Xxx) 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 with respect to the Trust 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 0000
Xxx) 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).
3. Limitation of Liability
(a) The Distributor 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. The Trust will
indemnify the Distributor against and hold it harmless from any
and all losses, claims,
damages, liabilities or expenses (including reasonable counsel
fees and expenses)
resulting from any claim, demand, action or suit not resulting
from the willful
misfeasance, bad faith or negligence of the Distributor in the
performance of such
obligations and duties or by reason of its reckless disregard
thereof; provided,
however, that as to any matter disposed of by a compromise payment
by the
Distributor, pursuant to a consent decree or otherwise, no
indemnification either for
such payment or for any other expenses shall be provided unless
there has been a
determination that the Distributor did not engage in willful
misfeasance, bad faith or
negligence or reckless disregard of the performance of its
obligations and duties (i) by
the court or other body approving the settlement or other
disposition; or (ii) based upon
a review of readily available facts (as opposed to a full trial-
type inquiry), by written
opinion from independent legal counsel approved by the Board of
Trustees; or (iii) by a
majority of the Board of Trustees who are neither interested
persons of the Trust (as
defined in the 0000 Xxx) nor parties to the matter, based upon a
review of readily
available facts (as opposed to a full trial-type inquiry).
(b) Notwithstanding the foregoing paragraph or anything else
contained in this
Agreement to the contrary, the Distributor's entire liability to
the Trust for any loss or
damage, direct or indirect, for any cause whatsoever, except a
loss resulting from the
Distributor's willful misfeasance, bad faith or negligence in the
performance of its
obligations and duties, or by reason of its reckless disregard
thereof (including but not
limited to those arising out of this Agreement), and regardless of
the form of action,
shall be limited to the Trust's actual direct out-of-pocket
expenses which are reasonably
incurred by the Trust, but shall not under any circumstances
exceed one million dollars
($1,000,000).
(c) In no event and under no circumstances shall either party to
this Agreement be
liable to the other party for consequential or indirect loss of
profits, reputation or
business or any other special damages under any provision of this
Agreement or for any
act or failure to act hereunder.
4. Notices
All notices and other communications (collectively referred
to as a "Notice" or
"Notices" in this paragraph) hereunder shall be in writing or by
telegram, cable, telex
or facsimile sending device. Notices shall be addressed (a) if to
the Distributor at its
address, 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000; (b) if to the
Trust, at its principal place of business or (c) if to neither of
the foregoing, at such
other address as to which the sender shall have been notified by
any such Notice or
other communication. The Notice may be sent by first-class mail,
in which case it
shall be deemed to have been given three days after it is sent, or
if sent by telegram,
cable, telex or facsimile sending device, it shall be deemed to
have been given
immediately.
5. Further Actions
Each party agrees to perform such further acts and execute
such further documents as
are necessary to effectuate the purposes hereof.
6. Amendments
This Agreement or any part hereof may be changed or waived
only by an instrument in
writing signed by the party against which enforcement of such
change or waiver is
sought.
7. Governing State Law
This Agreement shall be governed by and its provisions shall
be construed in
accordance with the laws of the Commonwealth of Massachusetts.
8. Matters Relating to the Trust as a Massachusetts Business
Trust
The names "Panorama Trust" and "Trustees of Panorama Trust"
refer respectively to
the Trust created and the Trustees, as trustees but not
individually or personally, acting
from time to time under a Declaration of Trust dated as of May 23,
1995 to which
reference is hereby made and a copy of which is on file at the
office of the Secretary of
the Commonwealth of Massachusetts and elsewhere as required by
law, and to any and
all amendments thereto so filed or hereafter filed. The
obligations of "Panorama
Trust" entered into in the name or on behalf thereof by any of the
Trustees,
representatives or agents are made not individually, but in such
capacities, and are not
binding upon any of the Trustees, Shareholders or representatives
of the Trust
personally, but bind only the assets of the Trust, and all persons
dealing with a Fund
must look solely to the assets of the Trust belonging to such Fund
for the enforcement
of any claims against the Trust.
9. Miscellaneous
This Agreement embodies the entire agreement and
understanding between the parties
hereto, and supersedes all prior agreements and understandings
relating to the subject
matter thereof. The captions in 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. If any provision
of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement
shall be binding and
shall inure to the benefit of the parties hereto and their
respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly
executed all as of the day and year first above written.
PANORAMA TRUST
By: /s/ Xxxx X. Xxxxxxx
Title: President & Chairman
440 FINANCIAL DISTRIBUTORS, INC.
By: /s/ Xxxxx Xxxx
Title: President
SCHEDULE A
to the Distribution Agreement
between Panorama Trust and
440 Financial Distributors, Inc.
Name of Series
Pictet Global Emerging Markets Fund
PANORAMA TRUST 440 FINANCIAL DISTRIBUTORS,
INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx Xxxx
Title: President & Chairman Title: President
