EX-99.23(e)
UNDERWRITING AGREEMENT
----------------------
THIS AGREEMENT is made as of February 2, 2007 by and between Professional
Funds Distributor, LLC, a Delaware limited liability company ("PFD"), and THE
ROXBURY FUNDS, a Delaware statutory trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is currently offering units of beneficial interest (such units of all series
are hereinafter called the "Shares"), representing interests in investment
portfolios of the Fund identified on Exhibit A hereto (the "Portfolios") which
are registered with the Securities and Exchange Commission (the "SEC") pursuant
to the Fund's Registration Statement on Form N-1A (the "Registration
Statement"); and
WHEREAS, the Fund wishes to retain PFD to serve as distributor for the
Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Exhibit A and for such additional classes or series as
the Fund may issue, and PFD wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As Used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Directors or Trustees
to give Oral Instructions and Written Instructions on behalf of the
Fund. An Authorized Person's scope of authority may be limited by
setting forth such limitation in a written document signed by both
parties hereto.
(d) "NASD" means the National Association of Securities Dealers, Inc.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFD from an
Authorized Person or from a person reasonably believed by PFD to be
an Authorized Person. PFD may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(f) "REGISTRATION STATEMENT" means any Registration Statement and any
Prospectus and any Statement of Additional Information relating to
the Fund filed with the SEC and any amendments or supplements
thereto at any time filed with the SEC.
(g) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, and the 0000 Xxx.
(h) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by an
Authorized Person and received by PFD or (ii) trade instructions
transmitted (and received by PFD) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Fund hereby appoints PFD to serve as the distributor of
its Shares in accordance with the terms set forth in this Agreement. PFD
accepts such appointment and agrees to furnish such services. The Fund
understands that PFD is now, and may in
the future be, the distributor of the shares of several investment
companies or series (collectively, the "Investment Entities"), including
Investment Entities having investment objectives similar to those of the
Fund. The Fund further understands that investors and potential investors
in the Fund may invest in shares of such other Investment Entities. The
Fund agrees that PFD's duties to such Investment Entities shall not be
deemed in conflict with its duties to the Fund under this Agreement.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFD undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect
to the duties to be performed by PFD hereunder. Except as specifically set
forth herein, PFD assumes no responsibility for such compliance by the
Fund or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFD shall act only upon
Oral Instructions or Written Instructions.
(b) PFD shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFD to be an Authorized Person) pursuant to
this Agreement. PFD may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's Board of Directors
or Trustees or of the Fund's shareholders, unless and until PFD
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFD Xxxxxx Instructions confirming
Oral
Instructions so that PFD receives the Written Instructions by the
close of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions are not
received by PFD or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFD's ability to rely upon
such Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFD shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions provided
that PFD's actions comply with the other provisions of this
Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFD is in doubt as to any action it should or
should not take, PFD may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFD shall be in doubt as to any question of
law pertaining to any action it should or should not take, PFD may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PFD, at the option of
PFD).
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFD receives
from the Fund, and the advice it receives from counsel, PFD may rely
upon and follow the advice of counsel. PFD shall provide the Fund
with prior written notice of its intention to follow advice of
counsel that is materially inconsistent with Oral Instructions or
Written Instructions. PFD shall further provide the Fund with a copy
of such
advice of counsel. OFS shall provide the Fund with prior written
notice of its intention to follow advice of counsel that is
materially inconsistent with Oral or Written Instructions. PFD shall
further provide the Fund with a copy of such advice of counsel.
(d) PROTECTION OF PFD. PFD shall be protected in any action it takes or
does not take in reliance upon directions or advice or Oral
Instructions or Written Instructions it receives from the Fund or
from counsel and which PFD believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFD (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFD's properly taking or
not taking such action.
6. RECORDS; VISITS. The books and records pertaining to the Fund, which are
in the possession or under the control of PFD, shall be the property of
the Fund. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Fund and Authorized Persons shall have access to such
books and records at all times during PFD's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records
shall be provided by PFD to the Fund or to an Authorized Person, at the
Fund's expense.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product
plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the
past, present or future business activities of the Fund or PFD,
their respective subsidiaries and affiliated companies; (b) any
scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in
the sense that its confidentiality affords the Fund or PFD a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable
or copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at
the time it is obtained; (b) is or becomes publicly known or
available through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(d) is released by the protected party to a third party without
restriction; (e) is requested or required to be disclosed by the
receiving party pursuant to a court order, subpoena, governmental or
regulatory agency request or law (provided the
receiving party will provide the other party written notice of the
same, to the extent such notice is permitted); (f) is relevant to
the defense of any claim or cause of action asserted against the
receiving party; (g) is Fund information provided by PFD in
connection with an independent third party compliance or other
review; (h) release of such information by PFD is necessary or
desirable in connection with the provision of services under this
Agreement; or (i) has been or is independently developed or obtained
by the receiving party.
(b) Notwithstanding any provision herein to the contrary, each party
hereto agrees that any Nonpublic Personal Information, as defined
under Section 248.3(t) of Regulation S-P ("Regulation S-P"),
promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed
by a party hereunder is for the specific purpose of permitting the
other party to perform the services set forth in this Agreement.
Each party agrees that, with respect to such information, it will
comply with Regulation S-P and the Act and that it will not disclose
any Nonpublic Personal Information received in connection with this
Agreement to any other party, except to the extent as necessary to
carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
8. COMPENSATION.
(a) As compensation for services rendered by PFD during the term of this
Agreement, the Fund will pay to PFD a fee or fees as may be agreed
to from time to time in writing by the Fund and PFD. The Fund
acknowledges that PFD may receive float benefits and/or investment
earnings in connection with maintaining certain accounts required to
provide services under this Agreement.
(b) The undersigned hereby represents and warrants to PFD that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFD or sponsor to
the Fund in connection with this Agreement, including but not
limited to any fee waivers, conversion cost reimbursements, up front
payments, signing payments or periodic payments made or to be made
by PFD to such adviser or sponsor or any affiliate of the Fund
relating to this Agreement have been fully disclosed to the Board of
Directors or Trustees of the Fund and that, if required by
applicable law, such Board of Directors or Trustees has approved or
will approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
9. INDEMNIFICATION.
(a) The Fund agrees to indemnify and hold harmless PFD and its
affiliates from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) arising directly
or indirectly from any action or omission to act which PFD takes in
connection with the provision of services to the Fund. Neither PFD,
nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by PFD
or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under
this Agreement or any material breach by PFD of this Agreement or
any other agreement between PFD and the Fund.
(b) The Fund agrees to indemnify and hold harmless PFD, its officers,
directors, and employees, and any person who controls PFD within the
meaning of Section 15 of the 1933 Act, free and harmless (a) from
and against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments and
liabilities of any sort or kind which PFD, its officers, directors,
employees or any such controlling person may incur under the 1933
Act, under any other statute, at common law or otherwise, arising
out of or based upon: (i) any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration
Statement, Prospectus, Statement of Additional Information, or sales
literature (including amendments and supplements thereto), or (ii)
any omission, or alleged omission, to state a material fact required
to be stated in the Fund's Registration Statement, Prospectus,
Statement of Additional Information or sales literature (including
amendments or supplements thereto), necessary to make the statements
therein not misleading, provided, however, that insofar as losses,
claims, damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with
information furnished to the Fund by PFD or its affiliated persons
for use in the Fund's Registration Statement, Prospectus, or
Statement of Additional Information or sales literature (including
amendments or supplements thereto), such indemnification is not
applicable; and (b) from and against any and all such claims,
demands, liabilities and expenses (including such costs and counsel
fees) which you, your officers and directors, or such controlling
person, may incur in connection with this Agreement or PFD'
performance hereunder (but excluding such claims, demands,
liabilities and expenses (including such costs and counsel fees)
arising out of or based upon any untrue statement, or alleged untrue
statement, of a material fact contained in any Registration
Statement or any Prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to
be stated in either any Registration Statement or any Prospectus or
necessary to make the statements in either thereof not misleading),
unless such claims, demands, liabilities and expenses (including
such costs and counsel fees) arise by reason of PFD's willful
misfeasance, bad faith or gross negligence in the performance of
PFD's duties hereunder. The Fund acknowledges and agrees that in the
event that PFD, at the request of the Fund, is required to give
indemnification comparable to that set forth in this paragraph to
any broker-dealer selling Shares of the Fund or servicing agent
servicing the shareholders of the Fund and such broker-dealer or
servicing agent shall make a claim for indemnification against PFD,
PFD shall make a similar claim for indemnification against the Fund.
(c) PFD agrees to indemnify and hold harmless the Fund, its several
officers and Board Members and each person, if any, who controls a
Portfolio within the meaning of Section 15 of the 1933 Act against
any and all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any
sort or kind which the Fund, its officers, Board Members or any such
controlling person may incur under the 1933 Act, under any other
statute, at common law or otherwise, but only to the extent that
such liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person
resulting from such claims or demands arose out of the acquisition
of any Shares by any person which may be based upon any untrue
statement, or alleged untrue statement, of a material fact contained
in the Fund's Registration Statement, Prospectus or Statement of
Additional Information (including amendments and supplements
thereto), or any omission, or alleged omission, to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, if such statement or omission was
made in reliance upon information furnished or confirmed in writing
to the Fund by PFD or its affiliated persons (as defined in the 1940
Act). The foregoing rights of indemnification shall be in addition
to any other rights to which the Fund or any such person shall be
entitled to as a matter of law.
(d) In any case in which one party hereto (the "Indemnifying Party") may
be asked to indemnify or hold the other party hereto (the
"Indemnified Party") harmless, the Indemnified Party will notify the
Indemnifying Party promptly after identifying any situation which it
believes presents or appears likely to present a claim for
indemnification (an "Indemnification Claim") against the
Indemnifying Party, although the failure to do so shall not prevent
recovery by the Indemnified Party, and shall keep the Indemnifying
Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to defend
the Indemnified Party against any Indemnification Claim which may be
the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by
counsel chosen by the Indemnifying Party and satisfactory to the
Indemnified Party, and thereupon the Indemnifying
Party shall take over complete defense of the Indemnification Claim
and the Indemnified Party shall sustain no further legal or other
expenses in respect of such Indemnification Claim. In the event that
the Indemnifying Party does not elect to assume the defense of any
such suit, or in case the Indemnified Party reasonably does not
approve of counsel chosen by the Indemnifying Party, or in case
there is a conflict of interest between the Indemnifying Party or
the Indemnified Party, the Indemnifying Party will reimburse the
Indemnified Party for the fees and expenses of any counsel retained
by the Indemnified Party. The Fund agrees promptly to notify PFD of
the commencement of any litigation or proceedings against the Fund
or any of its officers or directors in connection with the issue and
sale of any Shares. The Indemnified Party will not confess any
Indemnification Claim or make any compromise in any case in which
the Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent.
10. RESPONSIBILITY OF PFD.
(a) PFD shall be under no duty to take any action hereunder on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PFD and the Fund in a written amendment
hereto. PFD shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. PFD shall be
liable only for any damages arising out of PFD's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFD's willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFD shall not be liable for losses
beyond its control, including, without limitation, delays or errors
or loss of data occurring by reason of circumstances beyond PFD's
control, provided that PFD has acted in accordance with the standard
set forth in Section 10 (a) above; and (ii) PFD shall not be under
any duty or obligation to inquire into and shall not be liable for
the validity or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which
PFD reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFD nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by PFD or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) The provisions of this Section 10 shall survive termination of this
Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, PFD
shall have no liability either for any error or omission of any of
its predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
11. DUTIES AND OBLIGATIONS OF THE FUND.
(a) The Fund represents to PFD that all Registration Statements and
Prospectuses filed by the Fund with the SEC under the 1933 Act with
respect to the Shares
have been prepared in conformity with the requirements of the 1933
Act and the rules and regulations of the SEC thereunder. Except as
to information included in the Registration Statement in reliance
upon information provided to the Fund by PFD or any affiliate of PFD
expressly for use in the Registration Statement, the Fund represents
and warrants to PFD 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. PFD 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 PFD's counsel, be necessary or advisable. PFD shall
promptly notify the Fund of any advice given to it by its counsel
regarding the necessity or advisability of amending or supplementing
such Registration Statement. If the Fund shall not propose such
amendment or amendments and/or supplement or supplements within
fifteen days after receipt by the Fund of a written request from PFD
to do so, PFD may, at its option, terminate this Agreement. The Fund
shall not file any amendment to any Registration Statement or
supplement to any Prospectus without giving PFD
reasonable notice thereof in advance; provided, however, that
nothing contained in this Agreement shall in any way limit the
Fund's right to file at any time such amendments to any Registration
Statements and/or supplements to any Prospectus, of whatever
character, as the Fund may deem advisable, such right being in all
respects absolute and unconditional. The Fund authorizes PFD 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.
(b) The Fund represents and warrants to PFD that the Fund is a series of
investment company registered under the 1940 Act and the Shares sold
by each Portfolio are, and will be, registered under the 1933 Act.
(c) The net asset value of the Shares shall be determined in the manner
provided in the then current Prospectus and Statement of Additional
Information relating to the Shares, and when determined shall be
applicable to all transactions as provided in the Prospectus. The
net asset value of the Shares shall be calculated by the Fund or by
another entity on behalf of the Fund. PFD shall have no duty to
inquire into, or liability for, the accuracy of the net asset value
per Share as calculated.
(d) Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any
kind, the Fund may decline to accept any orders for, or make any
sales of, the Shares until such time as the Fund deems it advisable
to accept such orders and to make such sales, and the Fund advises
PFD promptly of such determination.
(e) The Fund agrees to execute any and all documents and to furnish any
and all
information and otherwise to take all actions that may be reasonably
necessary in connection with the qualification of the Shares for
sale in such states as PFD may designate. The Fund shall notify PFD
in writing of the states in which the Shares may be sold and shall
notify PFD in writing of any changes to the information contained in
the previous notification.
12. DUTIES AND OBLIGATIONS OF PFD.
(a) PFD will act on behalf of the Fund for the distribution of the
Shares covered by the Registration Statement under the 1933 Act and
provide the distribution services outlined below and as follows: (i)
preparation and execution of sales or servicing agreements, (ii)
preparation of quarterly 12b-1 Reports to the Board, (iii)
literature review, recommendations and submission to the NASD.
(b) PFD agrees to use efforts deemed appropriate by PFD to solicit
orders for the sale of the Shares and will undertake such
advertising and promotion as it believes reasonable in connection
with such solicitation. To the extent that PFD receives fees under
any plan adopted by the Fund pursuant to Rule 12b-1 under the 1940
Act, PFD agrees to furnish and/or enter into arrangements with
others for the furnishing of marketing or sales services with
respect to the Shares as may be required pursuant to such plan. To
the extent that PFD receives shareholder services fees under any
shareholder services plan adopted by the Fund, PFD agrees to furnish
and/or enter into arrangements with others for the furnishing of,
personal and/or account maintenance services with respect to the
relevant shareholders of the Fund as may be required pursuant to
such plan. It is contemplated that PFD will enter into sales or
servicing agreements with
securities dealers, financial institutions and other industry
professionals, such as investment advisers, accountants and estate
planning firms. PFD will require each dealer with whom PFD has a
selling agreement to conform to the applicable provisions of the
Prospectus, with respect to the public offering price of the Shares,
and PFD shall not cause the Fund to withhold the placing of purchase
orders so as to make a profit thereby.
(c) PFD shall not utilize any materials in connection with the sale or
offering of Shares except the Fund's Prospectus and Statement of
Additional Information and such other materials as the Fund shall
provide or approve. The Fund agrees to furnish PFD with sufficient
copies of any and all: agreements, plans, communications with the
public or other materials which the Fund intends to use in
connection any sales of Shares, in adequate time for PFD to file and
clear such materials with the proper authorities before they are put
in use. PFD and the Fund may agree that any such material does not
need to be filed subsequent to distribution. In addition, the Fund
agrees not to use any such materials until so filed and cleared for
use, if required, by appropriate authorities as well as by PFD.
(d) PFD will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund. PFD
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.
(e) No Shares shall be offered by either PFD or the Fund under any of
the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Fund if and so
long as effectiveness of the Registration
Statement then in effect or any necessary amendments thereto shall
be suspended under any of the provisions of the 1933 Act, or if and
so long as a current Prospectus as required by Section 5(b)(2) of
the 1933 Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph shall in any way restrict or
have any application to or bearing upon the Fund's obligation to
redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Fund's Registration Statement,
Articles of Incorporation, or bylaws.
13. DURATION AND TERMINATION. This Agreement shall become effective on the
date first written above 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 Fund'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 Fund,
provided that in either event the continuance is also approved by a
majority of the Board Members who are not parties to this Agreement and
who are not interested persons (as defined in the 0000 Xxx) of any party
to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable without
penalty, on at least sixty days' written notice, by the Fund's Board of
Trustess, by vote of a majority (as defined in the 1940 Act and Rule 18f-2
thereunder) of the outstanding voting securities of the Fund, or by PFD.
This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder). In the
event the Fund gives notice of termination, all expenses associated with
movement (or duplication) of
records and materials and conversion thereof to a successor transfer agent
or other service provider, and all trailing expenses incurred by PFD, will
be borne by the Fund.
14. NOTICES. Notices shall be addressed (a) if to PFD, at 000 Xxxxx Xxxx, Xxxx
xx Xxxxxxx, XX 00000, Attention: President (or such other address as PFD
may inform the Fund in writing); (b) if to the Fund, Xxxxxxx Xxxxx,
Roxbury Capital Management, LLC, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx
Xxxxxx, XX 00000 with a copy to Xxxxxxx X. Xxxxxx, Esquire, Drinker Xxxxxx
& Xxxxx LLP, One Xxxxx Square, 18th and Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX
00000-0000; or (c) if to neither of the foregoing, at such other address
as shall have been given by like notice to the sender of any such notice
or other communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to
have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given three days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on the
day it is delivered.
15. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
16. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or engage,
for the Fund or any other person, any of PFD's employees.
17. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
19. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its Registration Statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFD hereunder without the prior written approval
of PFD, which approval shall not be unreasonably withheld or
delayed.
(c) CAPTIONS. 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.
(d) INFORMATION. The Fund will provide such information and
documentation as PFD Distributor may reasonably request in
connection with services provided by PFD Distributor to the Fund.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(f) PARTIAL INVALIDITY. 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.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in
this Agreement, PFD hereby disclaims all representations and
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. PFD disclaims any
warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) TRUSTEE LIABILITY. The Fund and PFD agree that the obligations of
the Fund under this Agreement shall not be binding upon any of the
Trustees, shareholders, nominees, officers, employees or agents,
whether past, present or future, of the Fund individually, but are
binding only upon the assets of the Fund or applicable Portfolio, as
provided in the Fund's agreement and declaration of trust. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Fund, and signed by an authorized officer of the
Fund, acting as such, and neither such authorization by the Trustees
nor such execution by such officer shall
be deemed to have been made by them or any shareholder of the Fund
personally, but shall bind only the assets and property of the Fund
or applicable Portfolio as provided in the Fund's agreement and
declaration of trust.
(k) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Consistent with this requirement, PFD will
request (or already has requested) the Fund's name, address and
taxpayer identification number or other government-issued
identification number, and, if such party is a natural person, that
party's date of birth. PFD may also ask (and may have already asked)
for additional identifying information, and PFD may take steps (and
may have already taken steps) to verify the authenticity and
accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
Professional Funds Distributor, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Title: President
----------------------------
The Roxbury Funds
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Title: Chief Compliance Officer
----------------------------
EXHIBIT A
---------
THIS EXHIBIT A, dated as of February 2, 2007, is Exhibit A to that
certain Underwriting Agreement dated as of February 2, 2007, between
Professional Funds Distributor, LLC and The Roxbury Funds.
PORTFOLIOS
----------
Roxbury Mid-Cap Fund
Roxbury Small-Cap Growth Fund
