UNDERWRITING AGREEMENT
----------------------
This Agreement made as of December 18, 1998 by and between The Bjurman
Funds (the "Trust"), a Delaware business trust, and CW Fund Distributors, Inc.,
a Delaware corporation ("Underwriter").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "Act"); and
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, the Trust and Underwriter are desirous of entering into an
agreement providing for the distribution by Underwriter of shares of beneficial
interest (the "Shares") of the Trust;
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties agree as follows:
1. Appointment.
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The Trust hereby appoints Underwriter as its exclusive agent for the
distribution of the Shares, and Underwriter hereby accepts such appointment
under the terms of this Agreement. While this Agreement is in force, the Trust
shall not sell any Shares except on the terms set forth in this Agreement.
Notwithstanding any other provision hereof, the Trust may terminate, suspend or
withdraw the offering of Shares whenever, in its sole discretion, it deems such
action to be desirable.
2. Sale and Repurchase of Shares.
------------------------------
(a) Underwriter will have the right, as agent for the Trust, to enter into
dealer agreements with responsible investment dealers, and to sell Shares to
such investment dealers against orders therefor at the public offering price (as
defined in subparagraph 2(d) hereof) stated in the Trust's effective
Registration Statement on Form N-1A under the Securities Act of 1933, as
amended, including the then current prospectus and statement of additional
information (the "Registration Statement"). Upon receipt of an order to purchase
Shares from a dealer with whom Underwriter has a dealer agreement, Underwriter
will promptly cause such order to be filled by the Trust.
(b) Underwriter will also have the right, as agent for the Trust, to sell
such Shares to the public against orders therefor at the public offering price.
(c) Underwriter will also have the right to take, as agent for the Trust,
all actions which, in Underwriter's judgment, are necessary to carry into effect
the distribution of the Shares.
(d) The public offering price for the Shares of each Series shall be the
respective net asset value of the Shares of that Series then in effect, plus any
applicable sales charge determined in the manner set forth in the Registration
Statement or as permitted by the Act and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder. In no event shall any
applicable sales charge exceed the maximum sales charge permitted by the Rules
of the NASD.
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(e) The net asset value of the Shares of the Trust shall be determined in
the manner provided in the Registration Statement, and when determined shall be
applicable to transactions as provided for in the Registration Statement. The
net asset value of the Shares shall be calculated by the Trust or by another
entity on behalf of the Trust. Underwriter shall have no duty to inquire into or
liability for the accuracy of the net asset value per Share as calculated.
(f) On every sale, the Trust shall receive the applicable net asset value
of the Shares promptly, but in no event later than the third business day
following the date on which Underwriter shall have received an order for the
purchase of the Shares.
(g) Upon receipt of purchase instructions, Underwriter will transmit such
instructions to the Trust or its transfer agent for registration of the Shares
purchased.
(h) Nothing in this Agreement shall prevent Underwriter or any affiliated
person (as defined in the Act) of Underwriter from acting as underwriter or
distributor for any other person, firm or corporation (including other
investment companies) or in any way limit or restrict Underwriter or any such
affiliated person from buying, selling or trading any securities for its or
their own account or for the accounts of others for whom it or they may be
acting; provided, however, that Underwriter expressly represents that it will
undertake no activities which, in its judgment, will adversely affect the
performance of its obligations to the Trust under this Agreement.
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(i) Underwriter, as agent of and for the account of the Trust, may
repurchase the Shares at such prices and upon such terms and conditions as shall
be specified in the Registration Statement.
3. Sale of Shares by the Trust.
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The Trust reserves the right to issue any Shares at any time directly to
the holders of Shares ("Shareholders"), to sell Shares to its Shareholders or to
other persons at not less than net asset value and to issue Shares in exchange
for substantially all the assets of any corporation or trust or for the shares
of any corporation or trust.
4. Basis of Sale of Shares.
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Underwriter does not agree to sell any specific number of Shares.
Underwriter, as agent for the Trust, undertakes to sell Shares on a best efforts
basis only against orders therefor.
5. Rules of NASD, etc.
-------------------
(a) Underwriter will conform to the Rules of the NASD and the securities
laws of any jurisdiction in which it sells, directly or indirectly, any Shares.
(b) Underwriter will require each dealer with whom Underwriter has a dealer
agreement to conform to the applicable provisions hereof and the Registration
Statement with respect to the public offering price of the Shares, and neither
Underwriter nor any such dealers shall withhold the placing of purchase orders
so as to make a profit thereby.
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(c) Underwriter agrees to furnish to the Trust sufficient copies of any
agreements, plans or other materials it intends to use in connection with any
sales of Shares in adequate time for the Trust to file and clear them with the
proper authorities before they are put in use, and not to use them until so
filed and cleared.
(d) Underwriter, at its own expense, will qualify as dealer or broker, or
otherwise, under all applicable state or federal laws required in order that
Shares may be sold in such States as may be mutually agreed upon by the parties.
(e) Underwriter shall not make, or permit any representative, broker or
dealer to make, in connection with any sale or solicitation of a sale of the
Shares, any representations concerning the Shares except those contained in the
then current prospectus and statement of additional information covering the
Shares and in printed information approved by the Trust as information
supplemental to such prospectus and statement of additional information. Copies
of the then effective prospectus and statement of additional information and any
such printed supplemental information will be supplied by the Trust to
Underwriter in reasonable quantities upon request.
6. Records to be Supplied by Trust.
--------------------------------
The Trust shall furnish to Underwriter copies of all information, financial
statements and other papers which Underwriter may reasonably request for use in
connection with the distribution of the Shares, and this shall include, but
shall not
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be limited to, one certified copy, upon request by Underwriter, of all financial
statements prepared for the Trust by independent public accountants.
7. Fees and Expenses.
------------------
For performing its services under this Agreement, Underwriter will receive
from the Trust a fee of $500 per month. Fees shall be paid monthly in arrears.
The Trust shall promptly reimburse Underwriter for any expenses which are to be
paid by the Trust in accordance with the following paragraph.
In the performance of its obligations under this Agreement, Underwriter
will pay only the costs incurred in qualifying as a broker or dealer under state
and federal laws and in establishing and maintaining its relationships with the
dealers selling the Shares. All other reasonable costs in connection with the
offering of the Shares will be paid by the Trust in accordance with agreements
between them as permitted by applicable law, including the Act and rules and
regulations promulgated thereunder. These costs include, but are not limited to,
licensing fees, filing fees, travel and such other expenses as may be incurred
by Underwriter on behalf of the Trust. Licensing of representatives, who also
are employees of the investment adviser to the Trust, shall be done by mutual
consent.
8. Indemnification of Trust.
-------------------------
Underwriter agrees to indemnify and hold harmless the Trust and each person
who has been, is, or may hereafter be a trustee, officer, employee, shareholder
or control person of the
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Trust against any loss, damage or expense (including the reasonable costs of
investigation) reasonably incurred by any of them in connection with any claim
or in connection with any action, suit or proceeding to which any of them may be
a party, which arises out of or is alleged to arise out of or is based upon any
untrue statement or alleged untrue statement of a material fact, or the omission
or alleged omission to state a material fact necessary to make the statements
not misleading, on the part of Underwriter or any agent or employee of
Underwriter or any other person for whose acts Underwriter is responsible,
unless such statement or omission was made in reliance upon written information
furnished by the Trust. Underwriter likewise agrees to indemnify and hold
harmless the Trust and each such person in connection with any claim or in
connection with any action, suit or proceeding which arises out of or is alleged
to arise out of Underwriter's failure to exercise reasonable care and diligence
with respect to its services, if any, rendered in connection with investment,
reinvestment, automatic withdrawal and other plans for Shares. The term
"expenses" for purposes of this and the next paragraph includes amounts paid in
satisfaction of judgments or in settlements which are made with Underwriter's
consent. The foregoing rights of indemnification shall be in addition to any
other rights to which the Trust or each such person may be entitled as a matter
of law.
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9. Indemnification of Underwriter.
-------------------------------
The Trust agrees to indemnify and hold harmless Underwriter and each person
who has been, is, or may hereafter be a director, officer, employee, shareholder
or control person of Underwriter against any loss, damage or expense (including
the reasonable costs of investigation) reasonably incurred by any of them in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on the part of
any of such persons in the performance of Underwriter's duties or from the
reckless disregard by any of such persons of Underwriter's obligations and
duties under this Agreement. The Trust will advance attorneys' fees or other
expenses incurred by any such person in defending a proceeding, upon the
undertaking by or on behalf of such person to repay the advance if it is
ultimately determined that such person is not entitled to indemnification.
In order that the indemnification provisions contained in this Paragraph 9
shall apply, it is understood that if in any case the Trust may be asked to
indemnify Underwriter or any other person or hold Underwriter or any other
person harmless, the Trust shall be fully and promptly advised of all pertinent
facts concerning the situation in question, and it is further understood that
Underwriter will use all reasonable care to identify and notify the Trust
promptly concerning any situation which presents or appears likely to present
the probability of
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such a claim for indemnification against the Trust. The Trust shall have the
option to defend Underwriter and any such person against any claim which may be
the subject of this indemnification, and in the event that the Trust so elects
it will so notify Underwriter, and thereupon the Trust shall take over complete
defense of the claim, and neither Underwriter nor any such person shall in such
situation initiate further legal or other expenses for which it shall seek
indemnification under this Paragraph 9. Underwriter shall in no case confess any
claim or make any compromise in any case in which the Trust will be asked to
indemnify Underwriter or any such person except with the Trust's written
consent.
Notwithstanding any other provision of this Agreement, Underwriter shall be
entitled to receive and act upon advice of counsel (who may be counsel for the
Trust or its own counsel) and shall be without liability for any action
reasonably taken or thing reasonably done pursuant to such advice, provided that
such action is not in violation of applicable federal or state laws or
regulations.
10. Termination and Amendment of this Agreement.
--------------------------------------------
This Agreement shall automatically terminate, without the payment of any
penalty, in the event of its assignment. This Agreement may be amended only if
such amendment is approved (i) by Underwriter, (ii) either by action of the
Board of Trustees of the Trust or at a meeting of the Shareholders of the Trust
by the affirmative vote of a majority of the outstanding Shares, and
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(iii) by a majority of the Trustees of the Trust who are not interested persons
of the Trust or of Underwriter by vote cast in person at a meeting called for
the purpose of voting on such approval.
Either the Trust or Underwriter may at any time terminate this Agreement on
ninety (90) days' written notice delivered or mailed by registered mail, postage
prepaid, to the other party.
11. Effective Period of this Agreement.
-----------------------------------
This Agreement shall take effect upon its execution and shall remain in
full force and effect for a period of two (2) years from the date of its
execution (unless terminated automatically as set forth in Section 10), and from
year to year thereafter, subject to annual approval (i) by Underwriter, (ii) by
the Board of Trustees of the Trust or a vote of a majority of the outstanding
Shares, and (iii) by a majority of the Trustees of the Trust who are not
interested persons of the Trust or of Underwriter by vote cast in person at a
meeting called for the purpose of voting on such approval.
12. New Series.
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The terms and provisions of this Agreement shall become automatically
applicable to any additional series of the Trust established during the initial
or renewal term of this Agreement.
13. Successor Investment Trust.
---------------------------
Unless this Agreement has been terminated in accordance with Paragraph 10,
the terms and provisions of this Agreement shall become automatically applicable
to any investment company
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which is a successor to the Trust as a result of reorganization,
recapitalization or change of domicile.
14. Limitation of Liability.
------------------------
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust, personally, but bind only the trust property
of the Trust. The execution and delivery of this Agreement have been authorized
by the Trustees of the Trust and signed by an officer of the Trust, acting as
such, and neither such authorization by such Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Trust.
15. Severability.
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In the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
16. Questions of Interpretation.
----------------------------
(a) This Agreement shall be governed by the laws of the State of Ohio.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the Act shall be resolved by reference to such term or provision of the Act
and to
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interpretation thereof, if any, by the United States courts or in the absence of
any controlling decision of any such court, by rules, regulations or orders of
the Securities and Exchange Commission issued pursuant to said Act. In addition,
where the effect of a requirement of the Act, reflected in any provision of this
Agreement is revised by rule, regulation or order of the Securities and Exchange
Commission, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
17. Notices.
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Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt of such notice. Until further notice
to the other party, it is agreed that the address of the Trust for this purpose
shall be 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, and that the address of Underwriter for this purpose shall be 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxx 00000.
18. Counterparts.
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This Agreement may be executed in one or more counterparts, and by the
parties hereto on separate counterparts, each of which shall be deemed an
original but all of which together shall constitute but one and the same
instrument.
19. Year 2000 Readiness.
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Countrywide represents and warrants that it has taken reasonable steps to
make its transaction processing and recordkeeping and other systems and
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equipment compatible with the change in the year 1999 to 2000 without any
related errors in reports or material disruption to services provided hereunder
and Countrywide expects full compatibility before December 31, 1999.
IN WITNESS WHEREOF, the Trust and Underwriter have each caused this
Agreement to be signed in duplicate on their behalf, all as of the day and year
first above written.
ATTEST: THE BJURMAN FUNDS
By: /s/ G. Xxxxxx Xxxxxxx
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Its: Co-President
By: /s/ O. Xxxxxx Xxxxx
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Its: Co-President
ATTEST: CW FUND DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: President
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