WT MUTUAL FUND
PFPC DISTRIBUTORS, INC.
DISTRIBUTION AGREEMENT
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, 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 ("Shares"), 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
("Series"), each Series corresponding with a separate and distinct Fund
"Portfolio," each Share representing an undivided interest in the assets,
subject to the liabilities, allocated to a Portfolio, and each Portfolio having
a separate investment objective and separate investment policies;
WHEREAS, each Portfolio may issue one or more separate classes of Shares
("Classes") which may be subject to various front-end or 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;
WHEREAS, the Fund will consist of the Portfolios and Classes listed on
Schedule A to this Agreement, which Schedule A may be amended from time to time;
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");
WHEREAS, the Fund wishes to employ the services of the Distributor, with
such assistance from its affiliates as the latter may provide, for the purpose
of selling and distributing Shares of the respective Classes of the Portfolios
listed on Schedule A to this Agreement, such employment to take effect as of the
date first written above; and
WHEREAS, the Distributor wishes to provide distribution services to the
Fund as set forth below;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, 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 on its behalf Shares of the respective Classes of
the Portfolios listed on Schedule A hereto, 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 Fund's 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 agreements with
selected dealers and others ("Selling Dealers") for provision of distribution
services related to the sale of Fund 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. SHARES COVERED BY THIS AGREEMENT. This Agreement shall apply to all
Shares of the respective Classes of all Portfolios of the Fund listed upon
Schedule A; all such Shares held in the Fund's treasury in the event that (in
the discretion of the Fund) treasury shares shall be sold; and all such Shares
repurchased by the Fund for resale.
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 of the Fund. 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 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 upon 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:
(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
broker/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 of the Fund 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:
(i) from the Fund, in connection with the sale and distribution of
Shares of Classes that are subject to a Rule 12b-1 Distribution
Plan, such payments as shall be authorized to be paid by the Fund
pursuant to such Distribution Plan; and
(ii) from each Portfolio's sponsor, reimbursement for fees and
expenses incurred by the Distributor in connection with the sale
and distribution of Shares of Classes that are not subject to a
Rule 12b-1 Distribution Plan, without limitation, fees and
expenses detailed in Section 11(b) above.
(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 the Fund's Board of Trustees such information
as may be required to be reviewed by the Trustees 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 of
beneficial interest of the Fund, 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) 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
to be deemed to protect the Distributor or any person 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
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 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 on
controlling person(s) or defendant(s) in the suit, shall bear the
fees and expenses of any additional counsel retained by them. If
the Fund does not elect to assume the defense of any suit, it
will reimburse the Distributor, 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
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) 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 it
may have to the Fund or any person against whom such 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 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 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 or any
of its officers or trustees in connection with the issuance or
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. ACT 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 consummation of the acquisition of Provident Distributors, Inc. by
PFPC Inc. which is expected to occur on or about December 31, 2000, 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 not 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 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 the outstanding voting securities of the Fund, 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.
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
SEC copies of any amended or supplemented registration statement of the Fund
(including exhibits) under the 1933 Act, and the 1940 Act, 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. Any change
in such materials that would require any change in Distributor's obligations
under the foregoing provisions shall be subject to the burdened party'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, except for amendments to Schedule A, such consent of the party 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. Schedule A may be amended by agreement of
the Distributor and the President of the Fund.
17. NOTICE. Any notice under this Agreement shall be given in writing
addressed and hand delivered or sent by registered or certified mail, postage
prepaid, to the other party to this Agreement at its principal place of
business.
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 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 are 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
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 Wilmington Portfolios' Shares as
provided herein:
Wilmington Trust Company, as the Wilmington Portfolios' sponsor
By: _________________________
Date:
Acknowledgment as to reimbursement of fees and expenses incurred by PFPC
Distributors, Inc. as Distributor of the CRM Funds' Shares as provided herein:
Xxxxxx Xxxxxxxxx XxXxxxx, LLC, as the CRM Funds' sponsor
By: _________________________
Date:
Acknowledgment as to reimbursement of fees and expenses Incurred by PFPC
Distributors, Inc. as Distributor of the Roxbury Fund's Shares as provided
herein:
Roxbury Capital Management, LLC as the Roxbury Fund's sponsor
By: _________________________
Date:
DISTRIBUTION AGREEMENT
SCHEDULE A
WT MUTUAL FUND
PORTFOLIO LISTING
1. Wilmington Large Cap Value Portfolio - Investor class and Institutional
class Shares
2. Wilmington Large Cap Growth Portfolio - Investor class and Institutional
class Shares
3. Wilmington Large Cap Core Portfolio - Investor class and Institutional
class Shares
4. Wilmington Small Cap Core Portfolio - Investor class and Institutional
class Shares
5. Wilmington Small Cap Value Portfolio - Investor class and Institutional
class Shares
6. Wilmington Mid Cap Value Portfolio - Investor class and Institutional class
Shares
7. Wilmington International Multi-Manager Portfolio - Investor class and
Institutional class Shares
8. Wilmington Prime Money Market Portfolio - Investor class and Institutional
class Shares
9. Wilmington Premier Money Market Portfolio - Institutional class Shares
10. Wilmington U.S. Government Portfolio - Investor class and Institutional
class Shares
11. Wilmington Tax-Exempt Portfolio - Investor class and Institutional class
Shares
12. Wilmington Intermediate Bond Portfolio - Investor class and Institutional
class Shares
13. Wilmington Short / Intermediate Bond Portfolio - Investor class and
Institutional class Shares
14. Wilmington Municipal Bond Portfolio - Investor class and Institutional
class Shares
15. CRM Large Cap Value Fund - Investor class and Institutional class Shares
16. CRM Small Cap Value Fund - Investor class and Institutional class Shares
17. CRM Mid Cap Value Fund - Investor class and Institutional class Shares
18. CRM Prime Money Market Fund - Investor class and Institutional class Shares
19. CRM Tax-Exempt Fund - Investor class and Institutional class Shares
20. CRM Intermediate Bond Fund - Investor class and Institutional class Shares
21. CRM Municipal Bond Fund - Investor class and Institutional class Shares
22. Roxbury Large Cap Growth Fund - Class A, Class B, Class C and Class D
Shares
