EXHIBIT (E)(II)
WT MUTUAL FUND
PFPC DISTRIBUTORS, INC.
DISTRIBUTION AGREEMENT
(Class B Shares of the Roxbury Portfolios)
THIS DISTRIBUTION AGREEMENT is made as of the 2nd day of January 2001,
between WT Mutual Fund, a Delaware business trust (the "Fund"), having its
principal place of business in Wilmington, Delaware, on behalf of its portfolios
listed on Schedule A attached hereto, as it may be amended from time to time,
and PFPC Distributors, Inc., a corporation organized under the laws of the
Commonwealth of Massachusetts (the "Distributor"), having its principal place of
business in Westborough, Massachusetts.
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Fund is authorized to issue an unlimited number of shares
of beneficial interest, par value $0.01 per share, and has registered certain of
those duly authorized and issued Shares under the Securities Act of 1933 (the
"1933 Act");
WHEREAS, the Fund is further authorized to issue separate series of
shares, each share of each series representing an undivided interest in the
assets, subject to the liabilities, allocated to such series, and each series
having a separate investment objective and separate investment policies;
WHEREAS, each series of shares of the Fund listed on Schedule A
attached hereto (each a "Portfolio" and collectively the "Portfolios") may issue
Class B shares which may be subject to various back-end sales loads,
distribution charges pursuant to Rule 12b-1 under the 1940 Act, or shareholder
service fees, as stipulated in the Portfolio's prospectus (the "Shares"); and
WHEREAS, the Distributor is engaged in the business of promoting the
distribution of securities of investment companies, is registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "1934 Act"), and is
a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD");
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. SALE OF SHARES. During the term of this Agreement, the Fund grants
to the Distributor the right to sell the Shares on behalf of the Portfolios,
subject to the registration requirements of the 1933 Act, and of the laws
governing the sale of securities in various states (the "Blue Sky Laws"), under
the terms and conditions set forth herein. In connection therewith, the
Distributor (i) shall have the right to sell, as agent on behalf of the Fund,
Shares authorized for issue and registered under the 1933 Act; and (ii) shall
sell such Shares only in compliance
with the terms set forth in the Funds then currently effective registration
statement, with the Plan of Distribution of the Fund as may be in effect from
time to time for any Portfolio, and with any limitations as may be imposed from
time to time by the Board of Trustees of the Fund. The Distributor is not
obligated to sell any specific number of Shares.
2. SELLING DEALER AGREEMENTS. Subject to the supervisory authority of
the Fund's Board of Trustees, the Distributor may enter into selling dealer
agreements with selected dealers and others ("Selling Dealers") for the
provision of distribution services related to the sale of Shares as well as
other shareholder services as may be agreed by the affected parties. In entering
into such selling agreements, the Distributor will act only on its own behalf,
as principal.
3. SALE OF SHARES BY THE FUND. The rights granted to the Distributor
shall be non-exclusive in that the Fund reserves the right to sell its Shares to
investors on applications received and accepted by the Fund. Further, the Fund
reserves the right to issue Shares in connection with (a) the merger or
consolidation of the assets of, or acquisition by the Fund through purchase or
otherwise, with any other investment company, trust or personal holding company;
(b) the payment or reinvestment of dividends or distributions; or (c) any offer
of exchange permitted by Section 11 of the 1940 Act.
4. [Intentionally Omitted.]
5. PUBLIC OFFERING PRICE. Except as otherwise noted in the Fund's
current prospectus (the "Prospectus") or statement of additional information
(the "SAI") with respect to each Portfolio, all Shares sold to investors by the
Distributor or the Fund will be sold at the public offering price without a
sales load. The public offering price for all accepted subscriptions will be the
net asset value per Share, determined in the manner described in the Fund's
current Prospectus or SAI with respect to the applicable Portfolio. The Fund
shall in all cases receive the net asset value per Share on all such sales.
6. SUSPENSION OF SALES. If and whenever the determination of net asset
value is suspended and until such suspension is terminated, no further orders
for Shares shall be processed by the Distributor except such unconditional
orders placed with the Distributor before it had knowledge of the suspension. In
addition, the Fund reserves the right to suspend sales and the Distributor's
authority to process orders for Shares on behalf of the Fund if, in the judgment
of the Fund, it is in the best interests of the Fund to do so. Suspension will
continue for such period as may be determined by the Fund. In addition, the Fund
and Distributor reserve the right to reject any purchase order.
7. SOLICITATION OF SALES. In consideration of these rights granted to
the Distributor, the Distributor agrees to use all reasonable efforts,
consistent with its other business, to secure purchasers for Shares. This shall
not prevent the Distributor from entering into like arrangements (including
arrangements involving the payment of underwriting commissions) with other
issuers.
8. AUTHORIZED REPRESENTATIONS. The Distributor is not authorized by
the Fund to give any information or to make any representations other than those
contained in the appropriate
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registration statements, Prospectuses or SAI's filed with the Securities and
Exchange Commission under the 1933 Act and applicable Blue Sky Laws (as those
registration statements, Prospectuses and SAI's may be amended from time to
time), or contained in shareholder reports or other material that may be
prepared by or on behalf of the Fund for the Distributor's use. This shall not
be construed to prevent the Distributor from preparing and distributing, in
compliance with applicable laws and regulations, sales literature or other
material as it may deem appropriate. Distributor will furnish or cause to be
furnished copies of such sales literature or other material to the President of
the Fund or his or her designee and will provide that designee with a reasonable
opportunity to comment on it. Distributor agrees to take appropriate action to
cease using such sales literature or other material to which the Fund reasonably
objects as promptly as practicable after receipt of the objection.
9. REGISTRATION OF SHARES. The Fund agrees that it will take all
action necessary to register shares of beneficial interest of the Fund under the
1933 Act (subject to necessary approval, if any, of its shareholders) so that
there will be available for sale the number of Shares the Distributor may
reasonably be expected to sell. The Fund shall furnish to the Distributor copies
of all information, financial statements and other papers which the Distributor
may reasonably request for use in connection with the distribution of Shares of
each Portfolio of the Fund.
10. REPURCHASE OF SHARES. The Distributor as agent and for the account
of the Fund may repurchase Shares offered for resale to it and redeem such
Shares at their net asset value.
11. EXPENSES, COMPENSATION AND REIMBURSEMENT.
(a) The Fund shall pay all fees and expenses:
(i) in connection with the preparation, setting in type and
filing of any registration statement, Prospectus and SAI
under the 1933 Act, and any amendments thereto, for the
registration of its Shares;
(ii) in connection with the qualification of Shares for sale in
the various states in which the Fund's Board of Trustees
shall determine it advisable to qualify such shares for sale
(including registering the Fund or Portfolios as a broker or
dealer, or any officer of the Fund as agent or salesperson,
in any state);
(iii) of preparing, setting in type, printing and mailing any
report or other communication to shareholders of the Fund in
their capacity as such; and
(iv) of preparing, setting in type, printing and mailing
Prospectuses, SAI's, and any supplements thereto, sent to
existing shareholders.
(b) The Distributor shall pay costs of:
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(i) printing and distributing Prospectuses, SAI's and reports
prepared for its use in connection with the offering of
Shares for sale to the public;
(ii) any other literature used in connection with such offering;
(iii) advertising in connection with such offering including, but
not limited to the following: public relations services,
sales presentations, media charges, preparation, printing
and mailing of advertising and sales literature, data
processing necessary to support a distribution effort,
printing and mailing prospectuses and distribution and
shareholder servicing activities of brokers/dealers and
other financial institutions; and
(iv) filing fees required by regulatory authorities for sales
literature and advertising materials and any additional
out-of-pocket expenses incurred in connection with these and
any other costs of distribution.
(c) In addition to the services described above, Distributor will
provide services including assistance in the production of
marketing and advertising materials for the sale of Shares and
their review for compliance with applicable regulatory
requirements.
(d) In connection with the services to be provided by the Distributor
under this Agreement, the Distributor shall receive from the
Fund, in connection with the sale and distribution of Shares of
each Portfolio such payments as shall be authorized to be paid by
the Fund pursuant to a Rule 12b-1 Distribution Plan; and, without
limiting the generality of the foregoing, the Fund shall pay to
the Distributor, as compensation for its role in the distribution
of the Shares of each Portfolio, its Allocable Portion of the
Distribution Fee and contingent deferred sales charges ("CDSCs")
payable in accordance with section I of the Distribution Plan of
the Fund in respect of such Shares, and all of the terms and
conditions set forth in Section I of such Distribution Plan as in
effect on the date hereof are incorporated herein by reference
with the same force and effect as if such terms and conditions
were set forth herein in their entirety. For purposes of such
terms and conditions, the Distributor's Allocable Portion of the
Distribution Fees and CDSCs in respect of the Shares of each
Portfolio shall be 100% until it ceases to be the principal
distributor of such Shares and thereafter shall be determined in
a manner, to be agreed between the Fund and the Distributor, that
fairly allocates all Distribution Fees and CDSCs arising at any
time thereafter in respect of such Shares among the Distributor
and the successor distributors in proportion to the then
outstanding Shares of such Portfolio attributable to the
respective efforts of each thereof.
(e) In connection with the services to be provided by the Distributor
under this Agreement, and payments to be made and expenses to be
incurred by the parties under this Agreement, the Distributor
agrees to provide to the Fund's Board of Trustees such
information as may be required to be reviewed by the Trustees
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under Rule 12b-1 of the 1940 Act, including such financial
information as may be required in connection with the adoption,
supervision or continuation of any Rule 12b-1 Distribution Plan
of the Fund or the adoption of any budget thereunder.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify and hold harmless the Distributor
and each of its directors and officers and each person, if any,
who controls the Distributor within the meaning of Section 15 of
the 1933 Act against any loss, liability, claim, damages or
expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages, or expense
and reasonable counsel fees incurred in connection therewith)
arising by reason of any person acquiring any Shares, based upon
the 1933 Act or any other statute or common law, alleging any
wrongful act of the Fund or any of its employees or
representatives, or based upon the grounds that the registration
statements, Prospectuses, SAI's, shareholder reports or other
information filed or made public by the Fund (as from time to
time amended) with respect to any of the Portfolios included an
untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary in order to make
the statements not misleading. However, the Fund does not agree
to indemnify the Distributor or hold it harmless to the extent
that the statement or omission was made in reliance upon, and in
conformity with, information furnished to the Fund in writing by
or on behalf of the Distributor. In no case (i) is the indemnity
of the Fund in favor of the Distributor or any person
indemnified deemed to protect the Distributor against any
liability to the Fund or its security holders to which the
Distributor or such person would otherwise be subject by reason
of willful misfeasance, bad faith or ordinary negligence in the
performance of its duties or by reason of its reckless disregard
of its obligations and duties under this Agreement, or (ii) is
the Fund to be liable under its indemnity agreement contained in
this Section 12(a) with respect to any claim made against the
Distributor or any person indemnified unless the Distributor or
such person, as the case may be, shall have notified the Fund in
writing of the claim within a reasonable time after the summons
or other first written notification giving information of the
nature of the claim shall have been served upon the Distributor
or any such person or after the Distributor or such person shall
have received notice of service on any designated agent. However,
except to the extent the Fund is harmed thereby, failure to
notify the Fund of any claim shall not relieve the Fund from any
liability which it may have to the Distributor or any person
against whom such action is brought other than on account of its
indemnity agreement contained in this Section 12(a). The Fund
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit
brought to enforce any claims, but if the Fund elects to assume
the defense, the defense shall be conducted by counsel chosen by
it and satisfactory to the Distributor, or person or persons,
defendant or defendants in the suit. In the event the Fund elects
to assume the defense of any suit and retain counsel, the
Distributor, officers or trustees or controlling person(s) or
defendant(s) in the suit, shall bear the fees and expenses of any
additional counsel
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retained by them. If the Fund does not elect to assume the
defense of any suit, it will reimburse the Distributor, officers
or trustees or controlling person(s) or defendant(s) in the suit,
for the reasonable fees and expenses of any counsel retained by
them. The Fund agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against it or any
of its officers or Trustees in connection with the issuance or
sale of any of the Shares.
(b) The Distributor also covenants and agrees that it will indemnify
and hold harmless the Fund and each of its trustees and officers
and each person, if any, who controls the Fund within the meaning
of Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages,
claim or expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person acquiring
any Shares, based upon the 1933 Act or any other statute or
common law, alleging any wrongful act of the Distributor or any
of its employees or representatives, or alleging that the
registration statements, Prospectuses, SAI's, shareholder reports
or other information filed or made public by the Fund (as from
time to time amended) with respect to any of the Portfolios
included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in order
to make the statements not misleading, insofar as the statement
or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Fund by or on behalf of
the Distributor. In no case (i) is the indemnity of the
Distributor in favor of the Fund or any person indemnified to be
deemed to protect the Fund or any person against any liability to
which the Fund or such person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in
the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or
(ii) is the Distributor to be liable under its indemnity
agreement contained in this Section 12(b) with respect to any
claim made against the Fund or any person indemnified unless the
Fund or person, as the case may be, shall have notified the
Distributor in writing of the claim within a reasonable time
after the summons or other first written notification giving
information of the nature of the claim shall have been served
upon the Fund or any such person or after the Fund or such person
shall have received notice of service on any designated agent.
However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to
the Fund or any person against whom the action is brought other
than on account of its indemnity agreement contained in this
Section 12(b). In the case of any notice to the Distributor, it
shall be entitled to participate, at its own expense, in the
defense, or, if it so elects, to assume the defense of any suit
brought to enforce any claims, but if the Distributor elects to
assume the defense, the defense shall be conducted by counsel
chosen by it and satisfactory to the Fund, to its officers and
trustees and to any controlling person(s) or any defendant(s) in
the suit. In the event the Distributor elects to assume the
defense of any suit and retain counsel, the Fund or controlling
person(s) or any defendant(s) in the suit, shall bear the fees
and expenses of any additional counsel retained by them. If the
Distributor does not elect to assume
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the defense of any suit, it will reimburse the Fund, its officers
or Trustees, controlling person(s) or defendant(s) in the suit,
for the reasonable fees and expenses of any counsel retained by
them. The Distributor agrees to notify the Fund promptly of the
commencement of any litigation or proceedings against it in
connection with the issue and sale of any of the Shares.
13. LIABILITY OF THE DISTRIBUTOR. The Distributor shall not be liable
for any damages or loss suffered by the Fund in connection with the matters to
which this Agreement relates, except for damage or loss resulting from the
willful misfeasance, bad faith or gross negligence on the Distributor's part in
the performance, or reckless disregard, of its duties under this Agreement. Any
person, even though also an officer, partner, employee or agent of the
Distributor, or any of its affiliates, who may be or become an officer of the
Fund, shall be deemed, when rendering services to or acting on any business of
the Fund in any such capacity (other than services or business in connection
with the Distributor's duties under this Agreement), to be rendering such
services to or acting solely for the Fund and not as an officer, partner,
employee or agent or one under the control or direction of the Distributor or
any of its affiliates, even if paid by the Distributor or an affiliate thereof.
14. ACTS OF GOD, ETC. The Distributor shall not be liable for any
delays or errors occurring by reason of circumstances not reasonably foreseeable
and beyond its control, including but not limited to acts of civil or military
authority, national emergencies, work stoppages, fire, flood, catastrophe, acts
of God, insurrection, war, riot or failure of communication or power supply. In
addition, in the event of equipment breakdowns which are (i) beyond the
reasonable control of the Distributor and (ii) not primarily attributable to the
failure of the Distributor to reasonably maintain or provide for the maintenance
of such equipment, the Distributor shall, at no additional expense to the Fund,
take reasonable steps in good faith to minimize service interruptions but shall
have no liability with respect thereto.
15. EFFECTIVENESS, TERMINATION, ETC. This Agreement shall become
effective as of the date first written above, and unless terminated as provided,
shall continue in force for two (2) years from the date of its execution and
thereafter from year to year, provided continuance is approved at least annually
by either (i) the vote of a majority of the trustees of the Fund, or by the vote
of a majority of the outstanding voting securities of the Fund, and (ii) the
vote of a majority of those trustees of the Fund who are not interested persons
of the Fund and who are not parties to this Agreement or interested persons of
any party, cast in person at a meeting called for the purpose of voting on the
approval. This Agreement shall automatically terminate in the event of its
assignment. As used in this Section 15, the terms "vote of a majority of the
outstanding voting securities," "assignment" and "interested person" shall have
the respective meanings specified in the 1940 Act and the rules enacted
thereunder as now in effect or as hereafter amended. In addition to termination
by failure to approve continuance or by assignment, this Agreement may at any
time be terminated with respect to any or all Portfolios without the payment of
any penalty by vote of a majority of the trustees of the Fund who are not
interested persons of the Fund, or by vote of a majority of the outstanding
voting securities of such Portfolio or Portfolios, respectively, on not more
than sixty (60) days' written notice to the Distributor. This Agreement may be
terminated by the Distributor upon not less than sixty (60) days' prior written
notice to the Fund.
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16. AMENDMENT. The Distributor and the Fund shall regularly consult
with each other regarding Distributor's performance of its obligations and its
compensation under the foregoing provisions. In connection therewith, the Fund
shall submit to Distributor at a reasonable time in advance of filing with the
Securities and Exchange Commission copies of any amended or supplemented
registration statement of the Fund (including exhibits) under the 1933 Act and
the 1940 Act relating to any Portfolio, and, a reasonable time in advance of
their proposed use, copies of any amended or supplemented forms relating to any
plan, program or service offered by the Fund relating to any Portfolio. Any
change in such materials that would require any change in Distributor's
obligations under the foregoing provisions shall be subject to the Distributor's
approval, which shall not be unreasonably withheld. In the event that a change
in such documents or in the procedures contained therein increases the cost or
potential liability to the Distributor in performing its obligations hereunder
by more than an insubstantial amount, Distributor shall be entitled to receive
reasonable compensation therefor.
This Agreement may be amended at any time by mutual consent of the
parties, provided that such consent on the part of the Fund shall have been
approved (i) by the Trustees of the Fund, or by a vote of a majority of the
outstanding voting securities of the Fund, and (ii) by vote of a majority of the
Trustees of the Fund who are not interested persons of the Distributor or of the
Fund cast in person at a meeting called for the purpose of voting on such
amendment.
17. NOTICE. Any notice under this Agreement shall be given in writing
addressed and hand delivered or sent by registered or certified mail, postage
prepared, to each party to this Agreement as follows:
if to the Fund: if to the Distributor:
WT Mutual Fund PFPC Distributors, Inc.
Attention: Xxxxxx X. Xxxxxxxxx, President Attention: Xxxx X. Xxxxxxx, President
0000 Xxxxx Xxxxxx Xxxxxx 0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 King of Prussia, PA 19406
or at such other address as such party may specify in a notice to the other
party given pursuant to this section.
18. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
19. GOVERNING LAW. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws (without regard,
however, to laws as to conflicts of law) of the State of Delaware.
20. SHAREHOLDER LIABILITY. Distributor acknowledges that it has
received notice of and accepts the limitations of liability set forth in the
Fund's Agreement and Declaration of
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Trust. Distributor agrees that the Fund's obligations hereunder shall be limited
to the Fund, and that Distributor shall have recourse solely against the assets
of the Portfolio with respect to which the Fund's obligations hereunder related
and shall have no recourse against the assets of any other Portfolio or against
any shareholder, Trustee, officer, employee, or agent of the Fund.
21. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed in two
counterparts, each of which taken together shall constitute one and the same
instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
WT MUTUAL FUND
By :_______________________
Xxxxxx X. Xxxxxxxxx, President
PFPC DISTRIBUTORS, INC.
By :_______________________
Xxxx X. Xxxxxxx, President
Acknowledgment as to reimbursement of fees and expenses incurred by PFPC
Distributors, Inc. as Distributor of the Portfolios listed on Schedule A
attached hereto:
Roxbury Capital Management, LLC, as the Portfolio's sponsor
By:________________________________
Date:______________________________
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SCHEDULE A
TO
WT MUTUAL FUND
PFPC DISTRIBUTORS, INC.
DISTRIBUTION AGREEMENT
(Class B Shares of the Roxbury Portfolios)
PORTFOLIO LISTING
CLASS B SHARES OF:
Roxbury Large Cap Growth Fund
Roxbury Mid Cap Fund
Roxbury Science and Technology Fund
Roxbury Socially Responsible Fund
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