Exhibit e
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 24th day of September, 1999 by and
between Panorama Trust (the "Trust") and Provident Distributors, Inc. (the
"Distributor"), a corporation organized under the laws of State of
Delaware, having its principal place of business atFour Falls Corporate
Center, 0xx Xxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
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 the Effective Date as such term is defined in
Section 2 hereof.
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
and the Trust advises the Distributor promptly of such determination.
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. The
Trust 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 notifications.
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
Distributor 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 Distributor's counsel, be
necessary or advisable. The Distributor shall promptly notify the Trust
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 West Conshohocken,
Pennsylvania, 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 immediately upon the
consummation of the acquistion 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 (the Effective Date) 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) 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,Four Falls Corporate
Center, 0xx Xxxxx, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000; (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 theState of Delaware.
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 Xxxxxxx
Title:________________________
PROVIDENT DISTRIBUTORS, INC.
By:/s/Xxxxxx X. Xxxxxxxxx
Title:President
SCHEDULE A
to the Distribution Agreement
between Panorama Trust and
Provident Distributors, Inc.
Name of Series
Pictet Global Emerging Markets Fund
Pictet International Small Companies Fund
Pictet Eastern European Fund
Pictet European Equity Fund
