FORM OF UNDERWRITING AGREEMENT
______________________________
THIS AGREEMENT is made as of_______, 2006 by and between PROFESSIONAL FUNDS
DISTRIBUTOR, LLC ("PFD"), and THE ROXBURY FUNDS, a Delaware statutory 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 PFD 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 PFD 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 PFD
from an Authorized Person or from a person reasonably believed
by PFD to be an Authorized Person. PFD 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 PFD or (ii) trade
instructions transmitted (and received by PFD) 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 PFD to serve as the distributor of
its Shares in accordance with the terms set forth in this Agreement. PFD
accepts such appointment and agrees to furnish such services. The Fund
understands that PFD 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
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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 PFD's duties to such
Investment Entities shall not be deemed in conflict with its duties to the
Fund under this Agreement.
3. Compliance with Rules and Regulations. PFD 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 PFD hereunder. Except as
specifically set forth herein, PFD assumes no responsibility for such
compliance by the Fund or any other entity.
4. Instructions.
(a) Unless otherwise provided in this Agreement, PFD shall act
only upon Oral Instructions or Written Instructions.
(b) PFD 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 PFD to be an Authorized Person) pursuant to
this Agreement. PFD 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 PFD
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFD Written Instructions confirming
Oral Instructions so that PFD receives the Written Instructions by
the close of business on the same day that such Oral Instructions
are received. The fact that such
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confirming Written Instructions are not received by PFD or differ
from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or PFD's ability to rely upon such Oral
Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFD shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFD's actions
comply with the other provisions of this Agreement.
5. Right to Receive Advice.
(a) Advice of the Fund. If PFD is in doubt as to any action it should
or should not take, PFD may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFD shall be in doubt as to any question of
law pertaining to any action it should or should not take, PFD may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PFD, at the option of
PFD).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFD receives
from the Fund, and the advice it receives from counsel, PFD may rely
upon and follow the advice of counsel. PFD shall provide the Fund
with prior written notice of its intention to follow advice of
counsel that is materially inconsistent with Oral or Written
Instructions. PFD shall further provide the Fund with a copy of such
advice of counsel.
(d) Protection of PFD. PFD 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
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receives from the Fund or from counsel and which PFD 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 PFD (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 PFD's properly taking or not taking such action.
6. Records; Visits. The books and records pertaining to the Fund, which
are in the possession or under the control of PFD, 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 PFD's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFD to the Fund or to an
Authorized Person, at the Fund's expense.
7. 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
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PFD, their respective subsidiaries and affiliated companies;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or PFD
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 Confidential Information and 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 requested or required to be
disclosed by the receiving party pursuant to a court order,
subpoena, governmental or regulatory agency request or law (provided
the receiving party will provide the other party written notice of
the same, 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; (g) is Fund information provided by PFD in
connection with an independent third party compliance or other
review; (h) release of such information by PFD is necessary in
connection with the provision of services under this Agreement; or
(i) has been or is independently developed or obtained by the
receiving party.
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(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 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.
8. Compensation.
(a) As compensation for services rendered by PFD during the term of
this Agreement, the Fund will pay to PFD a fee or fees as may be agreed
to from time to time in writing by the Fund and PFD. The Fund
acknowledges that PFD may receive float benefits and/or investment
earnings in connection with maintaining certain accounts required to
provide services under this Agreement.
(b) The undersigned hereby represents and warrants to PFD that (i) the
terms of this Agreement, (ii) the fees and expenses associated with this
Agreement, and (iii) any benefits accruing to PFD or sponsor to the Fund
in connection with this Agreement, including but not limited to any fee
waivers, conversion cost reimbursements, up front payments, signing
payments or periodic payments made or to be made by PFD to such adviser or
sponsor or any affiliate of the Fund relating to this Agreement have been
fully disclosed to the Board of Directors or Trustees of the Fund and that,
if required by
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applicable law, such Board of Directors or Trustees has approved or will
approve the terms of this Agreement, any such fees and expenses, and any
such benefits.
9. Indemnification.
(a) The Fund agrees to indemnify and hold harmless PFD 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 PFD takes in
connection with the provision of services to the Fund. Neither PFD,
nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by
PFD' or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under
this Agreement or any material breach by PFD of this Agreement or
any other agreement between PFD and the Fund.
(b) The Fund agrees to indemnify and hold harmless PFD, its officers,
directors, and employees, and any person who controls PFD 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 PFD, 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
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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 PFD 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 PFD's 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 PFD's
willful misfeasance, bad faith or gross negligence in the
performance of
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PFD' duties hereunder. The Fund acknowledges and agrees that in the
event that PFD, 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 PFD,
PFD shall make a similar claim for indemnification against the Fund.
(c) PFD agrees to indemnify and hold harmless the Fund, its several
officers and Board Members and each person, if any, who controls a
Portfolio within the meaning of Section 15 of the 1933 Act against
any and all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any
sort or kind which the Fund, its officers, Board Members or any such
controlling person may incur under the 1933 Act, under any other
statute, at common law or otherwise, but only to the extent that
such liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person resulting from such claims
or demands arose out of the acquisition of any Shares by any person
which may be based upon any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration
Statement, Prospectus or Statement of Additional Information
(including amendments and supplements thereto), or any omission, or
alleged omission, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
if such statement or omission was made in reliance upon information
furnished or confirmed in writing to the Fund by PFD or its
affiliated persons (as defined in the 1940 Act). The foregoing
rights of indemnification shall be in
10
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 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 PFD of
the commencement of any litigation or
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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.
10. Responsibility of PFD.
(a) PFD 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 PFD and the Fund in a written amendment
hereto. PFD 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. PFD shall be
liable only for any damages arising out of PFD's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFD' willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties or any material breach by PFD of this
Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFD 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 PFD's
control, provided that PFD has acted in accordance with the standard
set forth in Section 10(a) above; and (ii) PFD 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
12
requirements of this Agreement, and which PFD reasonably believes to
be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFD 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 PFD or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(e) The provisions of this Section 10 shall survive termination of this
Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, PFD
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.
11. Duties and Obligations of the Fund.
(a) The Fund represents to PFD 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 PFD or any affiliate of PFD expressly for use in the
Registration Statement, the Fund represents and warrants to PFD 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
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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. PFD 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 PFD's counsel, be necessary or advisable. PFD
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 PFD to do so, PFD 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 PFD 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 PFD 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 PFD that the Fund is a series of
investment
14
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. PFD 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
PFD 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 PFD may designate. The Fund shall
notify PFD in writing of the states in which the Shares may be sold
and shall notify PFD in writing of any changes to the information
contained in the previous notification.
12. Duties and Obligations of PFD.
(a) PFD 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
15
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, if the Fund adopts a plan
pursuant to Rule 00x-0 xxxxx xxx 0000 Xxx, (xxx) literature review,
recommendations and submission to the NASD.
(b) PFD agrees to use efforts deemed appropriate by PFD to solicit
orders for the sale of the Shares and will undertake such
advertising and promotion as it believes reasonable in connection
with such solicitation. To the extent that PFD receives fees under
any plan adopted by the Fund pursuant to Rule 12b-1 under the 1940
Act, PFD 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 PFD receives shareholder services fees under any
shareholder services plan adopted by the Fund, PFD 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 PFD 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. PFD will require each dealer
with whom PFD has a selling agreement to conform to the applicable
provisions of the Prospectus, with respect to the public offering
price of the Shares, and PFD shall not cause the Fund to withhold
the placing of purchase orders so as to make a profit thereby.
(c) PFD shall not utilize any materials in connection with the sale or
offering of
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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 PFD 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 PFD to file and clear such
materials with the proper authorities before they are put in use.
PFD 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 PFD.
(d) PFD will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund. PFD
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 PFD 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, agreement and declaration of
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trust, or bylaws.
13. 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 one-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 PFD. 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 PFD, will
be borne by the Fund.
14. Notices. Notices shall be addressed (a) if to PFD, at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other address as
PFD may inform the Fund in writing); (b) if to the Fund, to Xxxxxxxx X.
Xxxxxxx, Roxbury Capital Management, LLC, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx
0000, Xxxxx Xxxxxx, XX 00000 with a copy to Xxxxxxx X. Xxxxxx, Esquire,
Drinker Xxxxxx & Xxxxx LLP, One Xxxxx Square, 18th and
00
Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000-0000; or (c) if to neither of the
foregoing, at such other address as shall have been given by like notice to
the sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile sending
device, it shall be deemed to have been given immediately. If notice is
sent by first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
15. 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.
16. 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 PFD's employees.
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) 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
19
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 Registration Statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFD hereunder without the prior written approval
of PFD, 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) Information. The Fund will provide such information and
documentation as PFD Distributor may reasonably request in
connection with services provided by PFD Distributor to the Fund.
(e) 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.
(f) 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.
(g) 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.
(h) No Representations or Warranties. Except as expressly provided
in this Agreement, PFD hereby disclaims all representations and
warranties, express or
20
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. PFD disclaims any warranty of title
or non-infringement except as otherwise set forth in this Agreement.
(i) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding execution
hereof by such party.
(j) Customer Identification Program Notice. 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. Consistent with this requirement, PFD will
request (or already has 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. PFD Distributor may also ask (and may have
already asked) for additional identifying information, and PFD
Distributor may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
(k) The Fund and PFD agree that the obligations of the Fund under this
Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only
upon the assets of the Fund or applicable Portfolio, as provided
21
in the Fund's agreement and declaration of trust. The execution and
delivery of this Agreement have been authorized by the Trustees of
the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by the Trustees nor such
execution by such officer shall be deemed to have been made by them
or any shareholder of the Fund individually or to impose any
liability on any of them or any shareholder of the Fund personally,
but shall bind only the assets and property of the Fund or
applicable Portfolio, as provided in the Fund's agreement and
declaration of trust.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PROFESSIONAL FUNDS DISTRIBUTOR, LLC
By:____________________
Title:_________________
THE ROXBURY FUNDS
By: ___________________
Title:_________________
23
EXHIBIT A
_________
THIS EXHIBIT A, dated as of ___________, 2006, is Exhibit A to that certain
Underwriting Agreement dated as of ___________, 2006, between Professional Funds
Distributor, LLC and The Roxbury Funds.
PORTFOLIOS
__________
Roxbury Mid-Cap Fund
Roxbury Small-Cap Growth Fund
Roxbury Micro-Cap Fund
