Exhibit (e)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of January 1, 2004 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and Xxx
Xxxxxxx Funds, Inc., a Maryland corporation (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 investment
companies or series (collectively, the "Investment Entities"),
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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.
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
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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.
(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
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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.
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
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(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.
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.
(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 PFPC
Distributors, their respective subsidiaries and affiliated companies
and the customers, clients and suppliers of any of them; (b) any
scientific or technical
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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 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.
(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.
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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.
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 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, negligence or reckless disregard of its duties
and obligations under this Agreement.
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(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, 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 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
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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 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 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
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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.
(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
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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 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
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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, 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 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) No party may assert a cause of action against PFPC Distributors or any
of its affiliates that allegedly occurred more than 12 months
immediately prior to the filing of the suit (or, if applicable,
commencement of arbitration proceedings) alleging such cause of
action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
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(f) The provisions of this Section 11 shall survive termination of this
Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, PFPC 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.
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 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,
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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 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
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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 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 efforts deemed appropriate by PFPC
Distributors to solicit orders for the sale of the Shares and will
undertake such advertising and
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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.
(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
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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, 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.
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,
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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
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 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
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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. 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) 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) 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
written approval of PFPC Distributors, which approval shall not be
unreasonably withheld or delayed.
(c) 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) This Agreement shall be deemed to be a contract made in Delaware and
governed
20
by Delaware law, without regard to principles of conflicts of law.
(e) 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) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
(g) Except as expressly provided in this Agreement, PFPC Distributors
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. PFPC Distributors disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
(h) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(i) The Fund will provide such information and documentation as PFPC
Distributors may reasonably request in connection with services
provided by PFPC to the Fund.
(j) 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. Certain of
21
PFPC Distributors and certain of its affiliates are financial
institutions, and PFPC Distributors may, as a matter of policy,
request (or may have already 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. PFPC Distributors may also ask (and may have
already asked) for additional identifying information, and PFPC
Distributors may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
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/ Xxxxx XxXxxxxxx
--------------------
Title: Vice President
---------------
XXX XXXXXXX FUNDS, INC.
By: /s/ Xxxxx Xxxx
---------------
Title: Vice President
---------------
23
EXHIBIT A
THIS EXHIBIT A, dated as of January 1, 2004, is Exhibit A to that certain
Underwriting Agreement dated as of January 1, 2004, between PFPC
Distributors, Inc. and Xxx Xxxxxxx Funds, Inc.
PORTFOLIOS
Small-Cap Growth Fund
Growth Opportunities Fund
Emerging Growth Fund
24
