EXHIBIT (E)(III)
WT MUTUAL FUND
PROVIDENT DISTRIBUTORS, INC.
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
(Class B Shares of the Roxbury Portfolios)
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT is made as of the 1st
day of November, 2000, between WT Mutual Fund, a Delaware business trust (the
"Fund"), having its principal place of business in Wilmington, Delaware, on
behalf of its portfolios listed on Schedule A attached hereto, as it may be
amended from time to time, and Provident Distributors, Inc., a corporation
organized under the laws of the State of Delaware (the "Distributor"), having
its principal place of business in King of Prussia, Pennsylvania.
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Fund is authorized to issue an unlimited number of shares
of beneficial interest, par value $0.01 per share, and has registered certain of
those duly authorized and issued Shares under the Securities Act of 1933 (the
"1933 Act");
WHEREAS, the Fund is further authorized to issue separate series of
shares, each share of each series representing an undivided interest in the
assets, subject to the liabilities, allocated to such series, and each series
having a separate investment objective and separate investment policies;
WHEREAS, each series of shares of the Fund listed on Schedule A
attached hereto (each a "Portfolio" and collectively the "Portfolios") may issue
Class B shares which may be subject to various back-end sales loads,
distribution charges pursuant to Rule 12b-1 under the 1940 Act, or shareholder
service fees, as stipulated in the Portfolio's prospectus (the "Shares");
WHEREAS, the Distributor is engaged in the business of promoting the
distribution of securities of investment companies, is registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "1934 Act"), and is
a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD");
WHEREAS, the Fund and the Distributor entered into a Distribution
Agreement dated as of November 1, 1999, pursuant to which the Fund employed the
services of the Distributor, with such assistance from its affiliates as the
latter may provide, for the purpose of selling and distributing various shares
of the Fund, and the Fund and the Distributor wish to amend and restate such
Distribution Agreement with respect to the Shares as of the date first written
above; and
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. SALE OF SHARES. During the term of this Agreement, the Fund grants
to the Distributor the right to sell the Shares on behalf of the Portfolios,
subject to the registration requirements of the 1933 Act, and of the laws
governing the sale of securities in various states (the "Blue Sky Laws"), under
the terms and conditions set forth herein. In connection therewith, the
Distributor (i) shall have the right to sell, as agent on behalf of the Fund,
Shares authorized for issue and registered under the 1933 Act; and (ii) shall
sell such Shares only in compliance with the terms set forth in the Funds then
currently effective registration statement, with the Plan of Distribution of the
Fund as may be in effect from time to time for any Portfolio, and with any
limitations as may be imposed from time to time by the Board of Trustees of the
Fund. The Distributor is not obligated to sell any specific number of Shares.
2. SELLING DEALER AGREEMENTS. Subject to the supervisory authority of
the Fund's Board of Trustees, the Distributor may enter into selling dealer
agreements with selected dealers and others ("Selling Dealers") for the
provision of distribution services related to the sale of Shares as well as
other shareholder services as may be agreed by the affected parties. In entering
into such selling agreements, the Distributor will act only on its own behalf,
as principal.
3. SALE OF SHARES BY THE FUND. The rights granted to the Distributor
shall be non-exclusive in that the Fund reserves the right to sell its Shares to
investors on applications received and accepted by the Fund. Further, the Fund
reserves the right to issue Shares in connection with (a) the merger or
consolidation of the assets of, or acquisition by the Fund through purchase or
otherwise, with any other investment company, trust or personal holding company;
(b) the payment or reinvestment of dividends or distributions; or (c) any offer
of exchange permitted by Section 11 of the 1940 Act.
4. [Intentionally Omitted.]
5. PUBLIC OFFERING PRICE. Except as otherwise noted in the Fund's
current prospectus (the "Prospectus") or statement of additional information
(the "SAI") with respect to each Portfolio, all Shares sold to investors by the
Distributor or the Fund will be sold at the public offering price without a
sales load. The public offering price for all accepted subscriptions will be the
net asset value per Share, determined in the manner described in the Fund's
current Prospectus or SAI with respect to the applicable Portfolio. The Fund
shall in all cases receive the net asset value per Share on all such sales.
6. SUSPENSION OF SALES. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be processed by the Distributor except such unconditional
orders placed with the Distributor before it had knowledge of the suspension. In
addition, the Fund reserves the right to suspend sales and the Distributor's
authority to process orders for Shares on behalf of the Fund if, in the judgment
of the Fund, it is in the best interests of the Fund to do so. Suspension will
continue for such period as may be determined by the Fund. In addition, the Fund
and Distributor reserve the right to reject any purchase order.
7. SOLICITATION OF SALES. In consideration of these rights granted to
the Distributor, the Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers for Shares. This shall
not prevent the Distributor from entering into like arrangements (including
arrangements involving the payment of underwriting commissions) with other
issuers.
8. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by the
Fund to give any information or to make any representations other than those
contained in the appropriate registration statements, Prospectuses or SAI's
filed with the Securities and Exchange Commission under the 1933 Act and
applicable Blue Sky Laws (as those registration statements, Prospectuses and
SAI's may be amended from time to time), or contained in shareholder reports or
other material that may be prepared by or on behalf of the Fund for the
Distributor's use. This shall not be construed to prevent the Distributor from
preparing and distributing, in compliance with applicable laws and regulations,
sales literature or other material as it may deem appropriate. Distributor will
furnish or cause to be furnished copies of such sales literature or other
material to the President of the Fund or his or her designee and will provide
that designee with a reasonable opportunity to comment on it. Distributor agrees
to take appropriate action to cease using such sales literature or other
material to which the Fund reasonably objects as promptly as practicable after
receipt of the objection.
9. REGISTRATION OF SHARES. The Fund agrees that it will take all action
necessary to register shares of beneficial interest of the Fund under the 1933
Act (subject to necessary approval, if any, of its shareholders) so that there
will be available for sale the number of Shares the Distributor may reasonably
be expected to sell. The Fund shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of Shares of each
Portfolio of the Fund.
10. REPURCHASE OF SHARES. The Distributor as agent and for the account
of the Fund may repurchase Shares offered for resale to it and redeem such
Shares at their net asset value.
11. EXPENSES, COMPENSATION AND REIMBURSEMENT.
(a) The Fund shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and
filing of any registration statement, Prospectus and SAI
under the 1933 Act, and any amendments thereto, for the
registration of its Shares;
(ii) in connection with the qualification of Shares for sale in
the various states in which the Fund's Board of Trustees
shall determine it advisable to qualify such shares for sale
(including registering the Fund or Portfolios as a broker or
dealer, or any officer of the Fund as agent or salesperson,
in any state);
(iii)of preparing, setting in type, printing and mailing any
report or other communication to shareholders of the Fund in
their capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAI's, and any supplements thereto, sent to
existing shareholders.
(b) The Distributor shall pay costs of:
(i) printing and distributing Prospectuses, SAI's and reports
prepared for its use in connection with the offering of
Shares for sale to the public;
(ii) any other literature used in connection with such offering;
(iii)advertising in connection with such offering including, but
not limited to the following: public relations services,
sales presentations, media charges, preparation, printing and
mailing of advertising and sales literature, data processing
necessary to support a distribution effort, printing and
mailing prospectuses and distribution and shareholder
servicing activities of brokers/dealers and other financial
institutions; and
(iv) filing fees required by regulatory authorities for sales
literature and advertising materials and any additional
out-of-pocket expenses incurred in connection with these and
any other costs of distribution.
(c) In addition to the services described above, Distributor will
provide services including assistance in the production of
marketing and advertising materials for the sale of Shares and
their review for compliance with applicable regulatory
requirements.
(d) In connection with the services to be provided by the Distributor
under this Agreement, the Distributor shall receive from the Fund,
in connection with the sale and distribution of Shares of each
Portfolio such payments as shall be authorized to be paid by the
Fund pursuant to a Rule 12b-1 Distribution Plan; and, without
limiting the generality of the foregoing, the Fund shall pay to
the Distributor, as compensation for its role in the distribution
of the Shares of each Portfolio, its Allocable Portion of the
Distribution Fee and contingent deferred sales charges ("CDSCs")
payable in accordance with section I of the Distribution Plan of
the Fund in respect of such Shares, and all of the terms and
conditions set forth in Section I of such Distribution Plan as in
effect on the date hereof are incorporated herein by reference
with the same force and effect as if such terms and conditions
were set forth herein in their entirety. For purposes of such
terms and conditions, the Distributor's Allocable Portion of the
Distribution Fees and CDSCs in respect of the Shares of each
Portfolio shall be 100% until it ceases to be the principal
distributor of such Shares and thereafter shall be determined in a
manner, to be agreed between the Fund and the Distributor, that
fairly allocates all Distribution Fees and CDSCs arising at any
time thereafter in respect of such Shares among the Distributor
and the successor distributors in proportion to the then
outstanding Shares of such Portfolio attributable to the
respective efforts of each thereof.
(e) In connection with the services to be provided by the Distributor
under this Agreement, and payments to be made and expenses to be
incurred by the parties under this Agreement, the Distributor
agrees to provide to the Fund's Board of Trustees such information
as may be required to be reviewed by the Trustees under Rule 12b-1
of the 1940 Act, including such financial information as may be
required in connection with the adoption, supervision or
continuation of any Rule 12b-1 Distribution Plan of the Fund or
the adoption of any budget thereunder.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify and hold harmless the Distributor and
each of its directors and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the
1933 Act against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any
alleged loss, liability, claim, damages, or expense and reasonable
counsel fees incurred in connection therewith) arising by reason
of any person acquiring any Shares, based upon the 1933 Act or any
other statute or common law, alleging any wrongful act of the Fund
or any of its employees or representatives, or based upon the
grounds that the registration statements, Prospectuses, SAI's,
shareholder reports or other information filed or made public by
the Fund (as from time to time amended) with respect to any of the
Portfolios included an untrue statement of a material fact or
omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading. However,
the Fund does not agree to indemnify the Distributor or hold it
harmless to the extent that the statement or omission was made in
reliance upon, and in conformity with, information furnished to
the Fund in writing by or on behalf of the Distributor. In no case
(i) is the indemnity of the Fund in favor of the Distributor or
any person indemnified to be deemed to protect the Distributor or
any person against any liability to the Fund or its security
holders to which the Distributor or such person would otherwise be
subject by reason of willful misfeasance, bad faith or ordinary
negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Fund to be liable under its indemnity
agreement contained in this Section 12(a) with respect to any
claim made against the Distributor or any person indemnified
unless the Distributor or such person, as the case may be, shall
have notified the Fund in writing of the claim within a reasonable
time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon
the Distributor or any such person or after the Distributor or
such person shall have received notice of service on any
designated agent. However, except to the extent the Fund is harmed
thereby, failure to notify the Fund of any claim shall not relieve
the Fund from any liability which it may have to the Distributor
or any person against whom such action is brought other than on
account of its indemnity agreement contained in this Section
12(a). The Fund shall be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the defense
of any suit brought to enforce any claims, but if the Fund elects
to assume the defense, the defense shall be conducted by counsel
chosen by it and satisfactory to the Distributor, or person or
persons, defendant or defendants in the suit. In the event the
Fund elects to assume the defense of any suit and retain counsel,
the Distributor, officers or trustees or controlling person(s) or
defendant(s) in the suit, shall bear the fees and expenses of any
additional counsel retained by them. If the Fund does not elect to
assume the defense of any suit, it will reimburse the Distributor,
officers or trustees or controlling person(s) or defendant(s) in
the suit, for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees to notify the Distributor
promptly of the commencement of any litigation or proceedings
against it or any of its officers or Trustees in connection with
the issuance or sale of any of the Shares.
(b) The Distributor also covenants and agrees that it will indemnify
and hold harmless the Fund and each of its trustees and officers
and each person, if any, who controls the Fund within the meaning
of Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages,
claim or expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person acquiring
any Shares, based upon the 1933 Act or any other statute or common
law, alleging any wrongful act of the Distributor or any of its
employees or representatives, or alleging that the registration
statements, Prospectuses, SAI's, shareholder reports or other
information filed or made public by the Fund (as from time to time
amended) with respect to any of the Portfolios included an untrue
statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the statements
not misleading, insofar as the statement or omission was made in
reliance upon, and in conformity with, information furnished in
writing to the Fund by or on behalf of the Distributor. In no case
(i) is the indemnity of the Distributor in favor of the Fund or
any person indemnified to be deemed to protect the Fund or any
person against any liability to which the Fund or such person
would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Distributor to be liable
under its indemnity agreement contained in this Section 12(b) with
respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall
have notified the Distributor in writing of the claim within a
reasonable time after the summons or other first written
notification giving information of the nature of the claim shall
have been served upon the Fund or any such person or after the
Fund or such person shall have received notice of service on any
designated agent. However, failure to notify the Distributor of
any claim shall not relieve the Distributor from any liability
which it may have to the Fund or any person against whom the
action is brought other than on account of its indemnity agreement
contained in this Section 12(b). In the case of any notice to the
Distributor, it shall be entitled to participate, at its own
expense, in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any claims, but if the
Distributor elects to assume the defense, the defense shall be
conducted by counsel chosen by it and satisfactory to the Fund, to
its officers and trustees and to any controlling person(s) or any
defendant(s) in the suit. In the event the Distributor elects to
assume the defense of any suit and retain counsel, the Fund or
controlling person(s) or any defendant(s) in the suit, shall bear
the fees and expenses of any additional counsel retained by them.
If the Distributor does not elect to assume the defense of any
suit, it will reimburse the Fund, its officers or Trustees,
controlling person(s) or defendant(s) in the suit, for the
reasonable fees and expenses of any counsel retained by them. The
Distributor agrees to notify the Fund promptly of the commencement
of any litigation or proceedings against it in connection with the
issue and sale of any of the Shares.
13. LIABILITY OF THE DISTRIBUTOR. The Distributor shall not be liable
for any damages or loss suffered by the Fund in connection with the matters to
which this Agreement relates, except for damage or loss resulting from the
willful misfeasance, bad faith or gross negligence on the Distributor's part in
the performance, or reckless disregard, of its duties under this Agreement. Any
person, even though also an officer, partner, employee or agent of the
Distributor, or any of its affiliates, who may be or become an officer of the
Fund, shall be deemed, when rendering services to or acting on any business of
the Fund in any such capacity (other than services or business in connection
with the Distributor's duties under this Agreement), to be rendering such
services to or acting solely for the Fund and not as an officer, partner,
employee or agent or one under the control or direction of the Distributor or
any of its affiliates, even if paid by the Distributor or an affiliate thereof.
14. ACTS OF GOD, ETC. The Distributor shall not be liable for any
delays or errors occurring by reason of circumstances not reasonably foreseeable
and beyond its control, including but not limited to acts of civil or military
authority, national emergencies, work stoppages, fire, flood, catastrophe, acts
of God, insurrection, war, riot or failure of communication or power supply. In
addition, in the event of equipment breakdowns which are (i) beyond the
reasonable control of the Distributor and (ii) not primarily attributable to the
failure of the Distributor to reasonably maintain or provide for the maintenance
of such equipment, the Distributor shall, at no additional expense to the Fund,
take reasonable steps in good faith to minimize service interruptions but shall
have no liability with respect thereto.
15. EFFECTIVENESS, TERMINATION, ETC. This Agreement shall become
effective as of the date first written above, and unless terminated as provided,
shall continue in force for two (2) years from the date of its execution and
thereafter from year to year, provided continuance is approved at least annually
by either (i) the vote of a majority of the trustees of the Fund, or by the vote
of a majority of the outstanding voting securities of the Fund, and (ii) the
vote of a majority of those trustees of the Fund who are not interested persons
of the Fund and who are not parties to this Agreement or interested persons of
any party, cast in person at a meeting called for the purpose of voting on the
approval. This Agreement shall automatically terminate in the event of its
assignment. As used in this Section 15, the terms "vote of a majority of the
outstanding voting securities," "assignment" and "interested person" shall have
the respective meanings specified in the 1940 Act and the rules enacted
thereunder as now in effect or as hereafter amended. In addition to termination
by failure to approve continuance or by assignment, this Agreement may at any
time be terminated with respect to any or all Portfolios without the payment of
any penalty by vote of a majority of the trustees of the Fund who are not
interested persons of the Fund, or by vote of a majority of the outstanding
voting securities of such Portfolio or Portfolios, respectively, on not more
than sixty (60) days' written notice to the Distributor. This Agreement may be
terminated by the Distributor upon not less than sixty (60) days' prior written
notice to the Fund.
16. AMENDMENT. The Distributor and the Fund shall regularly consult
with each other regarding Distributor's performance of its obligations and its
compensation under the foregoing provisions. In connection therewith, the Fund
shall submit to Distributor at a reasonable time in advance of filing with the
Securities and Exchange Commission copies of any amended or supplemented
registration statement of the Fund (including exhibits) under the 1933 Act and
the 1940 Act relating to any Portfolio, and, a reasonable time in advance of
their proposed use, copies of any amended or supplemented forms relating to any
plan, program or service offered by the Fund relating to any Portfolio. Any
change in such materials that would require any change in Distributor's
obligations under the foregoing provisions shall be subject to the Distributor's
approval, which shall not be unreasonably withheld. In the event that a change
in such documents or in the procedures contained therein increases the cost or
potential liability to the Distributor in performing its obligations hereunder
by more than an insubstantial amount, Distributor shall be entitled to receive
reasonable compensation therefor.
This Agreement may be amended at any time by mutual consent of the
parties, provided that such consent on the part of the Fund shall have been
approved (i) by the Trustees of the Fund, or by a vote of a majority of the
outstanding voting securities of the Fund, and (ii) by vote of a majority of the
Trustees of the Fund who are not interested persons of the Distributor or of the
Fund cast in person at a meeting called for the purpose of voting on such
amendment.
17. NOTICE. Any notice under this Agreement shall be given in writing
addressed and hand delivered or sent by registered or certified mail, postage
prepared, to each party to this Agreement as follows:
if to the Fund: if to the Distributor:
WT Mutual Fund Provident Distributors, Inc.
Attention:Xxxxxx X. Xxxxxxxxx, Attention:Xxxxxx X. Xxxxxxxxx,
President President
0000 Xxxxx Xxxxxx Xxxxxx 0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 King of Prussia, PA 19406
or at such other address as such party may specify in a notice to the other
party given pursuant to this section.
18. SEVERABILITY. 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.
19. GOVERNING LAW. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws (without regard,
however, to laws as to conflicts of law) of the State of Delaware.
20. SHAREHOLDER LIABILITY. Distributor acknowledges that it has
received notice of and accepts the limitations of liability set forth in the
Fund's Agreement and Declaration of Trust. Distributor agrees that the Fund's
obligations hereunder shall be limited to the Fund, and that Distributor shall
have recourse solely against the assets of the Portfolio with respect to which
the Fund's obligations hereunder related and shall have no recourse against the
assets of any other Portfolio or against any shareholder, Trustee, officer,
employee, or agent of the Fund.
21. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. 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. This Agreement may be executed in two
counterparts, each of which taken together shall constitute one and the same
instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WT MUTUAL FUND
By:/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx, President
PROVIDENT DISTRIBUTORS, INC.
By:/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
Acknowledgment as to reimbursement of fees and expenses incurred by Provident
Distributors, Inc. as Distributor of the Portfolios listed on Schedule A
attached hereto:
Roxbury Capital Management, LLC, as the Portfolio's sponsor
By: Roxbury Capital Management, LLC
-------------------------------
Date: November 1, 2000
----------------
SCHEDULE A
TO
WT MUTUAL FUND
PROVIDENT DISTRIBUTORS, INC.
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
(Class B Shares of the Roxbury Portfolios)
PORTFOLIO LISTING
CLASS B SHARES OF:
Roxbury Large Cap Growth Fund
Roxbury Mid Cap Fund
Roxbury Science and Technology Fund
Roxbury Socially Responsible Fund
