Exhibit (e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 31st day of December, 2000 (the
"Agreement") by and between Deutsche Asset Management VIT Funds, a Massachusetts
business trust (the "Trust") and PFPC Distributors, Inc. (the "Distributor"), a
Massachusetts corporation having its principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000.
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 Provident Distributors, Inc. by PFPC Inc. (or
a substantially similar transaction), which the parties anticipate to occur on
or about December 31, 2000, 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:
Deutsche Asset Management VIT Funds Trust
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To the Distributor:
PFPC Distributors, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
(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.
DEUTSCHE ASSET MANAGEMENT
VIT FUNDS
By: /s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
-----------------------------
Title: President
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PFPC DISTRIBUTORS, INC.
By: /s/Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
----------------------------
Title: President
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SCHEDULE A
to the Distribution Agreement
between Deutsche Asset Management VIT Funds and
PFPC 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
DEUTSCHE ASSET MANAGEMENT PFPC DISTRIBUTORS, INC.
VIT FUNDS
By: /s/Xxxxxxx X. Xxxx By: /s/Xxxx X. Xxxxxxx
------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxxxxx
----------------------------- -------------------------------
Title: President Title: President
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