Exhibit 23(e)
FORM OF
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of , 2002 by and between PFPC DISTRIBUTORS,
INC., a Massachusetts corporation ("PFPC Distributors"), and SMITHGRAHAM
INSTITUTIONAL FUNDS, 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 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
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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"), 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 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
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request.
(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.
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(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 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.
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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,
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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 information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in
the sense that its confidentiality affords the
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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. Each party
agrees that, with respect to such information, it will comply with
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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. No compensation will be paid by the Fund to PFPC Distributors
pursuant to 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, 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
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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 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
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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 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
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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
elects, such defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified
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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
arising out of PFPC Distributors' failure to perform its duties under
this
13
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 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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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, 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
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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 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
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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 promotion as it
believes reasonable in connection with such solicitation. To
the
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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
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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 Trustees or (ii) by a vote of
a majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of
the outstanding voting securities of the Fund, provided that in either
event the continuance is also approved by a majority of the Board
Members who are not parties to this Agreement and who are not
interested persons (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose
of voting on such approval. This Agreement is terminable without
penalty, on at least sixty days' written notice, by the Fund's Board of
Trustees, 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
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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.
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. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its
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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) 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) No Representations or Warranties. 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
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services provided under this Agreement. PFPC Distributors
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
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:______________________________
Title:___________________________
SMITHGRAHAM INSTITUTIONAL FUNDS
By:______________________________
Title:___________________________
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EXHIBIT A
THIS EXHIBIT A, dated as of ______________, 2002, is Exhibit A to that
certain Underwriting Agreement dated as of __________, 2002, between PFPC
Distributors, Inc. and SmithGraham Institutional Funds.
PORTFOLIOS
SG Government Money Market Fund
SG Prime Money Market Fund
SG Yield Plus Fund
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