UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of June 26, 2000 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and
HILLVIEW INVESTMENT TRUST II, a Delaware business 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 PFPC Distributors 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 PFPC Distributors 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 PFPC
Distributors from an Authorized Person or from a person
reasonably believed by PFPC Distributors to be an Authorized
Person. PFPC Distributors 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 PFPC Distributors or (ii)
trade instructions transmitted (and received by PFPC
Distributors) 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 PFPC Distributors to serve as the
distributor of its Shares in accordance with the terms set forth in this
Agreement. PFPC Distributors accepts such appointment and agrees to
furnish such services. The Fund understands that PFPC Distributors is
now, and may in the future be, the distributor of the shares of several
2
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 PFPC Distributors'
duties to such Investment Entities shall not be deemed in conflict with
its duties to the Fund under this Agreement.
3. Delivery of Documents.
(a) The Fund has provided or, where applicable, will provide PFPC
Distributors with the following:
(i) At PFPC Distributors' request, certified or
authenticated copies of the resolutions of the Fund's
Board of Directors or Trustees, approving the
appointment of PFPC Distributors or its affiliates to
provide services to the Fund and approving this
Agreement;
(ii) A copy of the Fund's most recent effective Registration
Statement;
(iii) Copies of any distribution and/or shareholder servicing
plans and agreements made in respect of the Fund or a
Portfolio;
(iv) A copy of the Fund's organizational documents, as filed
with the state in which the Fund is organized;
(v) Audited annual statements and unaudited semi-annual
statements of a Portfolio's books and accounts prepared
by the Fund;
(vi) Monthly itemized list of the securities in the
Portfolio;
(vii) Copies (certified or authenticated where applicable) of
any and all amendments or supplements to the foregoing;
and
(viii) Such other additional information as PFPC Distributors
may reasonably request.
3
(b) The Fund agrees to advise PFPC Distributors as soon as
reasonably practical by a notice in writing delivered to PFPC
Distributors:
(i) 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;
(ii) 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 Fund of any proceeding for that
purpose;
(iii) 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
(iv) 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 paragraph, informal requests by or acts of
the staff of the SEC shall not be deemed actions of or requests
by the SEC.
4. Compliance with Rules and Regulations. PFPC Distributors 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 PFPC
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Fund
or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Distributors
shall act only upon Oral Instructions or Written Instructions.
4
(b) PFPC Distributors 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 PFPC
Distributors to be an Authorized Person) pursuant to this
Agreement. PFPC Distributors 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 PFPC Distributors
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Distributors Written
Instructions confirming Oral Instructions so that PFPC
Distributors 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 PFPC Distributors or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC Distributors' ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC Distributors shall incur no liability to
the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC Distributors' actions comply
with the other provisions of this Agreement.
5
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Distributors is in doubt as to any
action it should or should not take, PFPC Distributors may
request directions or advice, including Oral Instructions or
Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Distributors shall be in doubt as to
any question of law pertaining to any action it should or should
not take, PFPC Distributors may request advice from counsel of
its own choosing (who may be counsel for the Fund, the Fund's
investment adviser or PFPC Distributors, at the option of PFPC
Distributors).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Distributors receives from the Fund, and the
advice it receives from counsel, PFPC Distributors may rely upon
and follow the advice of counsel.
(d) Protection of PFPC Distributors. PFPC Distributors 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
PFPC Distributors 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 PFPC Distributors (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 PFPC Distributors' properly taking or not
taking such action.
6
7. Records; Visits. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC Distributors, 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 PFPC Distributors'
normal business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by PFPC Distributors to
the Fund or to an Authorized Person, at the Fund's expense.
8. Confidentiality. 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 PFPC Distributors, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them; (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 PFPC Distributors 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
7
not patentable or copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information 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 required to be disclosed by the receiving party
pursuant to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will provide the
other party written notice of such requirement, 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; or (g) has been or
is independently developed or obtained by the receiving party.
9. Compensation. As compensation for services rendered by PFPC Distributors
during the term of this Agreement, the Fund will pay to PFPC
Distributors a fee or fees as may be agreed to from time to time in
writing by the Fund and PFPC Distributors. The Fund acknowledges that
PFPC Distributors may receive float benefits and/or investment earnings
in connection with maintaining certain accounts required to provide
services under this Agreement.
10. Indemnification.
(a) The Fund agrees to indemnify and hold harmless PFPC Distributors
and its affiliates from all taxes, charges, expenses,
assessments, claims and liabilities (including, without
8
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 PFPC Distributors takes
in connection with the provision of services to the Fund.
Neither PFPC Distributors, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to
such liability) caused by PFPC Distributors' or its affiliates'
own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement.
(b) The Fund agrees to indemnify and hold harmless PFPC
Distributors, its officers, directors, and employees, and any
person who controls PFPC Distributors 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 PFPC Distributors, 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 or
Statement of Additional Information (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
9
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 PFPC
Distributors 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 PFPC
Distributors' 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 PFPC Distributors' willful misfeasance, bad
faith or gross negligence in the performance of PFPC
Distributors' duties hereunder. The Fund acknowledges and agrees
that in the event that PFPC Distributors, 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
10
Fund and such broker-dealer or servicing agent shall make a
claim for indemnification against PFPC Distributors, PFPC
Distributors shall make a similar claim for indemnification
against the Fund.
(c) PFPC Distributors 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 PFPC Distributors 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.
11
(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 PFPC Distributors 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
12
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.
11. Responsibility of PFPC Distributors.
(a) PFPC Distributors 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 PFPC Distributors
and the Fund in a written amendment hereto. PFPC Distributors
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. PFPC
Distributors shall be liable only for any damages arising out of
PFPC Distributors' failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC
Distributors' 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) PFPC Distributors 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 PFPC Distributors' control, provided
that PFPC Distributors has acted in accordance with the standard
set forth in Section 11(a) above; and (ii) PFPC Distributors
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
13
requirements of this Agreement, and which PFPC Distributors
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Distributors 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 PFPC Distributors or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
12. Duties and Obligations of the Fund.
(a) The Fund represents to PFPC Distributors 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 PFPC Distributors or any
affiliate of PFPC Distributors expressly for use in the
Registration Statement, the Fund represents and warrants to PFPC
Distributors 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
14
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.
PFPC Distributors 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 PFPC Distributors' counsel, be necessary or advisable. PFPC
Distributors 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 PFPC Distributors to do so,
PFPC Distributors 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 PFPC
Distributors 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 PFPC Distributors 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 PFPC Distributors that the
Fund is a series of investment company registered under the 1940
15
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. PFPC Distributors 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 PFPC Distributors 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 PFPC Distributors may
designate. The Fund shall notify PFPC Distributors in writing of
the states in which the Shares may be sold and shall notify PFPC
Distributors in writing of any changes to the information
contained in the previous notification.
13. Duties and Obligations of PFPC Distributors.
(a) PFPC Distributors will act on behalf of the Fund for the
distribution of the Shares covered by the Registration Statement
16
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) PFPC Distributors agrees to use reasonable efforts 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 PFPC
Distributors receives fees under any plan adopted by the Fund
pursuant to Rule 12b-1 under the 1940 Act, PFPC Distributors
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 PFPC Distributors receives shareholder services fees
under any shareholder services plan adopted by the Fund, PFPC
Distributors 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 PFPC Distributors 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. PFPC
Distributors will require each dealer with whom PFPC
Distributors has a selling agreement to conform to the
applicable provisions of the Prospectus, with respect to the
public offering price of the Shares, and PFPC Distributors shall
not cause the Fund to withhold the placing of purchase orders so
as to make a profit thereby.
17
(c) PFPC Distributors 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
PFPC Distributors 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 PFPC Distributors to file and
clear such materials with the proper authorities before they are
put in use. PFPC Distributors 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 PFPC Distributors.
(d) PFPC Distributors will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent for
the Fund. PFPC Distributors 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 PFPC Distributors 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,
18
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.
(f) PFPC Distributors represents that it is registered with the SEC
as a broker/dealer and is a member in good standing of the NASD
and shall remain a member in good standing and comply with all
of the rules and regulations of the NASD and SEC. PFPC
Distributors agrees to promptly notify the Fund of any change to
the foregoing representation.
14. 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 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 Fund's Board of
Directors 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 Directors, 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 PFPC Distributors. This Agreement will also terminate
19
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 of records and
materials and conversion thereof to a successor service provider, and
all trailing expenses incurred by PFPC Distributors, will be borne by
the Fund.
15. Notices. Notices shall be addressed (a) if to PFPC Distributors, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b)
if to the Fund, at ______________, Attention: _______________ 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.
16. 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.
17. 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 PFPC Distributors'
employees.
18. 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.
20
19. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
20. Notice of Limitation of Shareholder Liability. The Fund and PFPC
Distributors agree that the obligations of the Fund 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
Fund individually, but are binding only upon the assets and property of
the Fund, as provided in the Declaration of Trust of the Fund. 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 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 Fund individually or to impose
any liability on any of them or any shareholder of the Fund personally,
but shall bind only the assets and property of the Fund as provided in
the Declaration of Trust of the Fund. The Fund and PFPC Distributors
further agree that the obligations of a Portfolio under the Agreement
shall not be binding on any other Portfolio, but are binding only upon
the assets and property of such Portfolio, as provided in the
Declaration of Trust.
21. 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.
21
(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 PFPC Distributors hereunder without the
prior approval of PFPC Distributors, 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) 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.
(e) 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.
(f) 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.
(g) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding execution
hereof by such party.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Title: Executive Vice President
HILLVIEW INVESTMENT TRUST II
By: /s/ Xxxxx X. Xxxxxxx
Title: President
23
EXHIBIT A
THIS EXHIBIT A, dated as of June 26, 2000, is Exhibit A to that certain
Underwriting Agreement dated as of June 26, 2000, between PFPC Distributors,
Inc. and Hillview Investment Trust II .
PORTFOLIOS
Hillview Alpha Fund
Hillview International Alpha Fund
24
