Exhibit No. EX-99.e.1
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of July 1, 2005, by and between MGI Funds
Distributors, Inc., a Massachusetts corporation ("MFDI"), and MGI 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 shares of beneficial interest (such shares 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 MFDI 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 MFDI 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 limitations 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 MFDI from an
Authorized Person or from a person reasonably believed by MFDI to be
an Authorized Person. MFDI 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 MFDI, or (ii) trade instructions
transmitted (and received by MFDI) by means of an electronic
transaction reporting system, access to which requires use of a
password or other authorized identifier. The Written Instructions may
be delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
(i) Appointment. The Fund hereby appoints MFDI to serve as the distributor
of the Fund's Shares in accordance with the terms set forth in this
Agreement. MFDI accepts such appointment and agrees to furnish such
services. MFDI agrees not to engage in any business activity other
than as the principal underwriter for the Fund, unless the Fund has
otherwise agreed in writing to such activity. Nothing herein shall be
intended to prevent MFDI's affiliated persons (as defined in the 0000
Xxx) from engaging in other business activities.
2. Compliance with Rules and Regulations.
(a) MFDI 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 MFDI hereunder. Except as specifically set forth herein,
MFDI assumes no responsibility for such compliance by the Fund or any
other entity.
(b) MFDI undertakes to furnish the Fund with properly certified copies of
all compliance policies and procedures of MFDI relating to its
distribution responsibilities under this Agreement which have been
prepared in accordance with Rule 38a-1 under the 1940 Act, in order to
permit the Board of Trustees of the Fund to meet its obligations under
Rule 38a-1 under the 1940 Act. Furthermore, MFDI will cooperate with
the Fund in connection with the review by the Fund's Chief Compliance
Officer of MFDI's distribution operations in connection with the
preparation of the yearly written report to the Board of Trustees of
the Fund contemplated by Rule 38a-1(a)(4)(iii) under the 1940 Act.
MFDI will promptly furnish the Fund with copies of all amendments to
the foregoing compliance policies and procedures.
3. Instructions.
(a) Unless otherwise provided in this Agreement, MFDI shall act only upon
Oral Instructions or Written Instructions.
(b) MFDI 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 MFDI to be an Authorized Person) pursuant to
this Agreement. MFDI 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 MFDI receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to MFDI Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
MFDI or its affiliates) so that MFDI 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 MFDI or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or MFDI's ability to rely upon
such Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, MFDI shall incur no liability to the Fund in acting
upon such Oral Instructions or Written Instructions, provided that
MFDI's actions comply with the other provisions of this Agreement.
4. Right to Receive Advice.
(a) Advice of the Fund. If MFDI is in doubt as to any action it should or
should not take, MFDI may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If MFDI shall be in doubt as to any question of law
pertaining to any action it should or should not take, MFDI may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment advisor or MFDI, at the option of
MFDI).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions MFDI receives from
the Fund, and the advice it receives from counsel, MFDI may rely upon
and follow the advice of counsel. In any such case, MFDI will use its
reasonable efforts to contact the Fund prior to or promptly after
taking any actions inconsistent with Instructions previously received
from the Fund.
(d) Protection of MFDI. MFDI 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 MFDI 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 MFDI (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 MFDI properly taking or not
taking such action.
5. Records; Visits. The books and records pertaining to the Fund, which are in
the possession or under the control of MFDI, 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 MFDI's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records
shall be provided by MFDI to the Fund or to an Authorized Person, at the
Fund's expense.
6. 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 MFDI, 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 MFDI 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,
and upon request, will to the extent reasonable, coordinate any such
production with the Fund and the Fund's counsel); (f) is relevant to
the defense of any claim or cause of action asserted against the
receiving party; (g) release of such information by MFDI is necessary
or desirable in connection with the provision of services under this
Agreement; or (h) 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
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.
(c) The parties acknowledge that there will be instances where each party
will have in its possession the same Nonpublic Information that was
obtained outside of the relationship contemplated under this Agreement
that is the same Nonpublic Information that is obtained pursuant to
this Agreement ("Non-Proprietary Customer Information"). The parties
agree that disclosure of Non-Proprietary Customer Information shall be
subject to the policies and procedures of the respective parties and
the provisions provided of this Section 7 shall not apply to
Non-Proprietary Customer Information.
7. Compensation.
(a) As compensation for services rendered by MFDI during the term of this
Agreement, the Fund or the Fund's investment advisor, Xxxxxx Global
Investments, Inc. ("MGI"), will pay to MFDI a fee or fees as may be
agreed to from time to time in writing by the Fund or MGI and MFDI.
The Fund acknowledges that MFDI 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 MFDI that (i) the
terms of this Agreement; (ii) the fees and expenses associated with
this Agreement; and (iii) any benefits accruing to MFDI 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 MFDI to
such adviser or sponsor or any affiliate of the Fund relating to this
Agreement have been fully disclosed to the Board of Trustees of the
Fund and that, if required by applicable law, such Board of Trustees
has approved or will approve the terms of this Agreement, any such
fees and expenses, and any such benefits.
8. Indemnification.
(a) The Fund agrees to indemnify and hold harmless MFDI and its affiliates
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable 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 MFDI takes in
reliance upon Oral or Written Instructions received from the Fund or
which MFDI is required or expressly allowed to take or refrain from
taking in accordance with the provisions of this Agreement. Neither
MFDI, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by MFDI
or its affiliates' own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this Agreement.
MFDI shall not make any claim for any amounts payable by the Fund
hereunder except against the relevant Portfolio's assets and not
against the assets of any other investment Portfolio of the Fund.
(b) The Fund agrees to indemnify and hold harmless MFDI, its officers,
directors, and employees, and any person who controls MFDI 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 MFDI, 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 MFDI 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 reasonable counsel fees) which MFDI, it officers and
directors, or such controlling person, may incur in connection with
this Agreement or MFDI's performance hereunder (but excluding such
claims, demands, liabilities and expenses (including such costs and
reasonable 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 reasonable counsel fees) arise by reason of
MFDI's willful misfeasance, bad faith or negligence in the performance
of MFDI's duties hereunder. The Fund acknowledges and agrees that in
the event that MFDI, 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 MFDI, MFDI shall make a
similar claim for indemnification against the Fund.
(c) MFDI agrees to indemnify and hold harmless the Fund, its several
officers and trustees 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, trustees or any such controlling
person may incur under the 1933 Act, under any other statute, at
common law or otherwise, to the extent that such liability or expense
incurred by the Fund, its officers or trustees, or any controlling
person, resulting from such claims or demands, arose out of: (i)
MFDI's failure to adhere to its obligations under this Agreement,
including any actions taken by MFDI without appropriate authorization
by the Fund; or (ii) 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 MFDI 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 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 MFDI 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.
9. Responsibility of MFDI.
(a) MFDI 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 MFDI and the Fund in a written amendment
hereto. MFDI 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. MFDI shall be
liable only for any damages arising out of MFDI's failure to perform
its duties under this Agreement to the extent such damages arise out
of MFDI's willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) MFDI 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 MFDI's
control, provided that MFDI has acted in accordance with the standard
set forth in Section 10(a) above, and (ii) MFDI 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
MFDI reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
MFDI nor its affiliates, nor the Fund, the Portfolios and their
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 MFDI, its affiliates, the Fund, the Portfolios or
their 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.
10. Duties and Obligations of the Fund.
(a) The Fund represents to MFDI 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 MFDI or
any affiliate of MFDI expressly for use in the Registration Statement,
the Fund represents and warrants to MFDI 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. MFDI 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
reasonable opinion of MFDI's counsel, be necessary or advisable. MFDI
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 MFDI to do so, and if within such fifteen-day period MFDI and the
Fund are unable to reach agreement as to the necessity of such
amendments or supplement, MFDI may, at its option, terminate this
Agreement (upon sixty days' notice to the Fund). The Fund shall not
file any amendment to any Registration Statement or supplement to any
Prospectus without giving MDFI 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 MFDI
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 MFDI that the Fund is an
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. MFDI 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 MFDI
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 MFDI may designate. The Fund shall
notify MFDI in writing of the states in which the Shares may be sold
and shall notify MFDI in writing of any changes to the information
contained in the previous notification.
11. Duties and Obligations of MFDI.
(a) MFDI 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 of Trustees; and
(iii) literature review, recommendations and submission to the NASD.
(b) MFDI agrees to use efforts deemed appropriate by MFDI 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 MFDI receives fees under any plan
adopted by the Fund pursuant to Rule 12b-1 under the 1940 Act, MFDI
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 MFDI
receives shareholder services fees under any shareholder services plan
adopted by the Fund, MFDI 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 MFDI 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. MFDI will require each dealer with whom MFDI has a
selling agreement to conform to the applicable provisions of the
Prospectus, with respect to the public offering price of the Shares,
and MFDI shall not cause the Fund to withhold the placing of purchase
orders so as to make a profit thereby.
(c) MFDI 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 MFDI 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 MFDI to file and clear such
materials with the proper authorities before they are put in use. MFDI
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 MFDI.
(d) MFDI will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund. MFDI 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 MFDI 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 Trust, or
By-Laws.
12. 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 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 trustees 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 MFDI. This Agreement also will 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 reasonable expenses associated with movement (or
duplication) of records and materials and conversion thereof to a successor
underwriter, transfer agent or other service provider, and all reasonable
trailing expenses incurred by MFDI, will be borne by the Fund. In the event
that MFDI gives notice of termination, unless such termination is preceded
by the Fund's material breach of this Agreement, all reasonable expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor distributor(s) (and any other service
provider(s)), and all reasonable trailing expenses incurred by MFDI, will
be borne by MFDI. In the event of termination, MFDI agrees that it will
cooperate to permit the smooth transition of services and to minimize
disruption to the Fund and its shareholders.
13. Notices. Notices shall be addressed (a) if to MFDI, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as MFDI may inform the Fund in writing); (b) if to the Fund, at
Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chief Operating
Officer, with a copy to Xxxxx X. Xxxxxxxxxx, Esq., Chief Counsel, Xxxxxx
Global Investments, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000; 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.
14. 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.
15. Non-Solicitation. During the term of this Agreement and for a period of one
year afterward, the Fund shall not recruit, or solicit, for the Fund or any
other person, any of MFDI's employees. This provision is not meant to
prevent an employee of MFDI from contacting the Fund or any other person
related to the Fund regarding a potential position.
16. 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.
17. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
18. 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 the Registration Statement or adopt any
policies which would affect materially the obligations or
responsibilities of MFDI hereunder without the prior written approval
of MFDI, 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 MFDI may reasonably request in connection with services provided by
MFDI 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, MFDI 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 services provided
under this Agreement. MFDI 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, MFDI 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. MFDI may also ask (and may have already asked) for additional
identifying information, and MFDI may take steps (and may have already
taken steps) to verify the authenticity and accuracy of these data
elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
MGI FUNDS DISTRIBUTORS, INC.
By: /s/ Xxxxx Xx Xxxxxxx
Name: Xxxxx Xx Xxxxxxx
Title: Vice President
MGI FUNDS
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President and Secretary
EXHIBIT A
THIS EXHIBIT A, dated as of July 1, 2005 is Exhibit A to that certain
Underwriting Agreement dated as of July 1, 2005, between MFDI and MGI Funds.
PORTFOLIOS
MGI US Large Cap Growth Equity Fund
MGI US Large Cap Value Equity Fund
MGI US Small/Mid Cap Growth Equity Fund
MGI US Small/Mid Cap Value Equity Fund
MGI Non-US Core Equity Fund
MGI Core Opportunistic Fixed Income Fund
MGI US Short Maturity Fixed Income Fund
