Exhibit e(1)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of August 1, 2005 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and CRM
MUTUAL FUND TRUST a Delaware statutory trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is currently offering units of beneficial interest (such units of all series
are hereinafter called the "Shares"), representing interests in investment
series of the Fund identified on Exhibit A hereto (the "Series") 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 PFPC Distributors to serve as
distributor for the Series to provide for the sale and distribution of the
Shares of the Series identified on Exhibit A and for such additional classes or
series as the Fund may issue, and PFPC Distributors wishes to furnish such
services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Directors or Trustees
to give Oral Instructions and Written Instructions on behalf of the
Fund. An Authorized Person's scope of
authority may be limited by setting forth such limitation in a
written document signed by both parties hereto.
(d) "NASD" means the National Association of Securities Dealers, Inc.
(e) "Oral Instructions" mean oral instructions received by PFPC
Distributors from an Authorized Person or from a person reasonably
believed by PFPC Distributors to be an Authorized Person. PFPC
Distributors 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 ▇▇▇▇ ▇▇▇.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC Distributors or (ii) trade
instructions transmitted (and received by PFPC Distributors) by
means of an electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC Distributors to serve as the
distributor of its Shares in accordance with the terms set forth in this
Agreement. PFPC Distributors accepts such appointment and agrees to
furnish such services. The Fund understands that PFPC Distributors is now,
and may in the future be, the distributor of the shares of
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several investment companies or series (collectively, the "Investment
Entities"), including Investment Entities having investment objectives
similar to those of the Fund. The Fund further understands that investors
and potential investors in the Fund may invest in shares of such other
Investment Entities. The Fund agrees that PFPC Distributors' duties to
such Investment Entities shall not be deemed in conflict with its duties
to the Fund under this Agreement.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC Distributors 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 PFPC
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Fund or
any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Distributors shall
act only upon Oral Instructions or Written Instructions.
(b) PFPC Distributors 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 PFPC Distributors to
be an Authorized Person) pursuant to this Agreement. PFPC
Distributors may assume that any Oral Instructions or Written
Instructions received hereunder are not in any way inconsistent with
the provisions of organizational documents of the Fund or of any
vote, resolution or proceeding of the Fund's Board of Trustees or of
the Fund's shareholders, unless
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and until PFPC Distributors receives Written Instructions to the
contrary.
(c) The Fund agrees to forward to PFPC Distributors Written Instructions
confirming Oral Instructions so that PFPC Distributors 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 PFPC Distributors or differ
from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or PFPC Distributors' ability to rely upon such
Oral Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFPC Distributors shall incur no liability to the Fund in acting
upon such Oral Instructions or Written Instructions provided that
PFPC Distributors' actions comply with the other provisions of this
Agreement. If the Written Instructions differ from the Oral
Instructions, any actions that PFPC Distributors takes or omits
based on the Oral Instructions before PFPC Distributors has a
reasonable opportunity to act on the Written Instructions shall be
valid and enforceable.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC Distributors is in doubt as to any
action it should or should not take, PFPC Distributors may request
directions or advice, including Oral Instructions or Written
Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Distributors shall be in doubt as to any
question of law pertaining to any action it should or should not
take, PFPC Distributors may
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request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PFPC Distributors, at
the option of PFPC Distributors).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC
Distributors receives from the Fund, and the advice it receives from
counsel, PFPC Distributors may rely upon and follow the advice of
counsel. PFPC Distributors shall provide the Fund with prior written
notice of its intention to follow advice of counsel that is
materially inconsistent with Oral or Written Instructions. PFPC
Distributors shall further provide the Fund with a copy of such
advice of counsel.
(d) Protection of PFPC Distributors. PFPC Distributors 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 PFPC Distributors
believes, acting reasonably, 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
PFPC Distributors (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 PFPC Distributors' properly
taking or not taking such action.
6. RECORDS; VISITS. The books and records pertaining to the Fund, which are
in the
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possession or under the control of PFPC Distributors, 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 PFPC Distributors'
normal business hours. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by PFPC Distributors to the
Fund or to an Authorized Person, at the Fund's expense.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product
plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the
past, present or future business activities of the Fund or PFPC
Distributors, 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 PFPC Distributors 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
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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 first obtained, and was previously
obtained through an unrelated source and not subject to a duty of
confidentiality; (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
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); (e) is relevant to the defense of any claim or cause of
action asserted against the receiving party; (f) release of such
information by PFPC Distributors is necessary in connection with the
provision of services under this Agreement; or (g) 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 ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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
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Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with this
Agreement to any other party, except to the extent as necessary to
carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
8. COMPENSATION.
(a) As compensation for services rendered by PFPC Distributors during the
term of this Agreement, the Fund will pay to PFPC Distributors a fee or
fees as may be agreed to from time to time in writing by the Fund and PFPC
Distributors. The Fund acknowledges that PFPC Distributors 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 PFPC Distributors
that (i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits accruing to PFPC
Distributors 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 PFPC Distributors to such adviser or sponsor or any
affiliate of the Fund relating to this Agreement have been fully disclosed
to the Board of Directors or Trustees of the Fund and that, if required by
applicable law, such Board of Directors or Trustees has approved or will
approve the terms of this Agreement, any such fees and expenses, and any
such benefits.
9. INDEMNIFICATION.
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(a) The Fund agrees to indemnify and hold harmless PFPC Distributors and
its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, 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 PFPC
Distributors takes in connection with the provision of services to
the Fund. Notwithstanding the foregoing, neither PFPC Distributors,
nor any of its affiliates, nor any of their officers, directors,
agents, or employees shall be indemnified against any liability (or
any expenses incident to such liability) caused by PFPC
Distributors' or its affiliates' own willful misfeasance, bad faith,
negligence or reckless disregard of its duties and obligations under
this Agreement or any material breach by PFPC Distributors of this
Agreement or any other agreement between PFPC Distributors and the
Fund.
(b) The Fund agrees to indemnify and hold harmless PFPC Distributors,
its officers, directors, and employees, and any person who controls
PFPC Distributors 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 PFPC
Distributors, 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 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 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 PFPC Distributors or its
affiliated persons for use in the Fund's Registration Statement,
Prospectus, or Statement of Additional Information or sales
literature (including amendments or supplements thereto), such
indemnification is not applicable; and (b) from and against any and
all such claims, demands, liabilities and expenses (including such
costs and counsel fees) which you, your officers and directors, or
such controlling person, may incur in connection with this Agreement
or PFPC Distributors' performance hereunder (but excluding such
claims, demands, liabilities and expenses (including such costs and
counsel fees) arising out of or based upon any untrue statement, or
alleged untrue statement, of a material fact contained in any
Registration Statement or any Prospectus or arising out of or based
upon any omission, or alleged omission, to state a material fact
required to be stated in either any Registration Statement or any
Prospectus or necessary to make the statements in either thereof not
misleading), unless such claims, demands,
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liabilities and expenses (including such costs and counsel fees)
arise by reason of PFPC Distributors' willful misfeasance, bad faith
or negligence in the performance of PFPC Distributors' duties
hereunder. The Fund acknowledges and agrees that in the event that
PFPC Distributors, 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 PFPC
Distributors, PFPC Distributors shall make a similar claim for
indemnification against the Fund.
(c) PFPC Distributors agrees to indemnify and hold harmless the Fund,
its several officers and Board Members and each person, if any, who
controls a Series within the meaning of Section 15 of the 1933 Act
against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which the Fund, its officers, Board Members or
any such controlling person may incur under the 1933 Act, under any
other statute, at common law or otherwise, but only to the extent
that such liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person resulting from such claims
or demands arose out of the acquisition of any Shares by any person
which may be based upon any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration
Statement, Prospectus or Statement of Additional Information
(including amendments and supplements thereto), or any omission, or
alleged omission, to
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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 PFPC Distributors 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
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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 PFPC Distributors 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.
10. RESPONSIBILITY OF PFPC DISTRIBUTORS.
(a) PFPC Distributors 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 PFPC Distributors and
the Fund in a written amendment hereto. PFPC Distributors 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. PFPC Distributors shall be liable
only for any damages arising out of PFPC Distributors' failure to
perform its duties under this Agreement to the extent such damages
arise out of PFPC Distributors' willful misfeasance, bad faith,
negligence or reckless disregard of such duties or any material
breach by PFPC Distributors of this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this
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Agreement, (i) PFPC Distributors 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 PFPC
Distributors' control, provided that PFPC Distributors has acted in
accordance with the standard set forth in Section 10(a) above; and
(ii) PFPC Distributors 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 PFPC
Distributors reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC Distributors nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by PFPC
Distributors or its affiliates.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) Notwithstanding anything in this Agreement to the contrary, PFPC
shall have no liability either for any error or omission of any of
its predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
(g) The provisions of this Section 10 shall survive termination of this
Agreement.
11. DUTIES AND OBLIGATIONS OF THE FUND.
(a) The Fund represents to PFPC Distributors that all Registration
Statements and Prospectuses filed by the Fund with the SEC under the
1933 Act with respect to
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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 PFPC Distributors
or any affiliate of PFPC Distributors expressly for use in the
Registration Statement, the Fund represents and warrants to PFPC
Distributors 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. PFPC
Distributors may but shall not be obligated to propose from time to
time such amendment or amendments to any Registration Statement and
such supplement or supplements to any Prospectus as, in the light of
future developments, may, in the opinion of the PFPC Distributors'
counsel, be necessary or advisable. PFPC Distributors 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
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PFPC Distributors to do so, PFPC Distributors may, at its option,
terminate this Agreement. The Fund shall not file any amendment to
any Registration Statement or supplement to any Prospectus without
giving PFPC Distributors 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 PFPC Distributors 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 PFPC Distributors that the Fund
is a series of investment company registered under the 1940 Act and
the Shares sold by each Series 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. PFPC Distributors 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
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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 PFPC Distributors
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 PFPC Distributors may designate.
The Fund shall notify PFPC Distributors in writing of the states in
which the Shares may be sold and shall notify PFPC Distributors in
writing of any changes to the information contained in the previous
notification.
12. DUTIES AND OBLIGATIONS OF PFPC DISTRIBUTORS.
(a) PFPC Distributors 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) literature review, recommendations and
submission to the NASD, (iii) maintenance of NASD licenses of
registered representatives of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC in
connection with the sale of Fund shares in accordance with NASD
rules and regulations. PFPC Distributors shall have the right, in
its sole discretion, to refuse to license, or maintain the license
of, any individual as its representative.
(b) PFPC Distributors agrees to use efforts deemed appropriate by PFPC
Distributors 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
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extent that PFPC Distributors receives fees under any plan adopted
by the Fund pursuant to Rule 12b-1 under the 1940 Act, PFPC
Distributors 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 PFPC Distributors receives shareholder services fees
under any shareholder services plan adopted by the Fund, PFPC
Distributors 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 PFPC
Distributors 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. PFPC Distributors will require each dealer with whom
PFPC Distributors has a selling agreement to conform to the
applicable provisions of the Prospectus, with respect to the public
offering price of the Shares, and PFPC Distributors shall not cause
the Fund to withhold the placing of purchase orders so as to make a
profit thereby.
(c) PFPC Distributors 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 PFPC
Distributors 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 PFPC
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Distributors to file and clear such materials with the proper
authorities before they are put in use. PFPC Distributors 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 PFPC Distributors.
(d) PFPC Distributors will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent for the
Fund. PFPC Distributors 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 PFPC Distributors 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, Articles of Incorporation, or
bylaws.
13. DURATION AND TERMINATION. This Agreement shall become effective on the
date first written above and, unless sooner terminated as provided herein,
shall continue for an
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initial one-year term and thereafter shall be renewed for successive
two-year terms, provided such continuance is specifically approved at
least annually by (i) the Fund's Board of Directors or (ii) by a vote of a
majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the Fund, provided that in either event
the continuance is also approved by a majority of the Board Members who
are not parties to this Agreement and who are not interested persons (as
defined in the ▇▇▇▇ ▇▇▇) 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 Directors, 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 PFPC Distributors. This Agreement
will also terminate automatically in the event of its assignment (as
defined in the 1940 Act and the rules thereunder). In the event the Fund
gives notice of termination, all expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor transfer agent or other service provider, and all trailing
expenses incurred by PFPC Distributors, will be borne by the Fund.
14. NOTICES. Notices shall be addressed (a) if to PFPC Distributors, at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President (or
such other address as PFPC may inform the Fund in writing); (b) if to the
Fund, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇
▇▇▇▇; 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
20
or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to
have been given three days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
15. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
16. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or engage,
for the Fund or any other person, any of PFPC Distributors' employees.
17. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
18. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
19. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this
21
Agreement to the contrary, the Fund agrees not to make any
modifications to its registration statement or adopt any policies
which would affect materially the obligations or responsibilities of
PFPC Distributors hereunder without the prior written approval of
PFPC Distributors, 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 PFPC Distributor may reasonably request in
connection with services provided by PFPC Distributor to the Fund.
(e) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC Distributors hereby disclaims all
representations and
22
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. PFPC Distributors
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) The Fund and PFPC agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only
upon the assets and property of the Fund (or applicable series
thereof), as provided in the Declaration of Trust. The execution and
delivery of this Agreement have been authorized by the trustees of
the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such trustees nor such
execution and delivery by such officers shall be deemed to have been
made by any of them or any shareholder of the Fund individually or
to impose any liability on any of them or any shareholder of the
Fund personally, but shall bind only the assets and property of the
Fund (or applicable series thereof), as provided in the Declaration
of Trust.
(k) Customer Identification Program Notice. To help the U.S. government
fight the
23
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, PFPC Distributors 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. PFPC Distributor may also ask (and may have
already asked) for additional identifying information, and PFPC
Distributor may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CRM MUTUAL FUND TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇▇▇▇
Title: CFO
25
EXHIBIT A
THIS EXHIBIT A, dated as of August 1, 2005, is Exhibit A to that certain
Underwriting Agreement dated as of August 1, 2005, between PFPC Distributors,
Inc. and CRM Mutual Fund Trust.
SERIES
Small Cap Value
(Investor Class and Institutional Class share classes)
Mid Cap Value
(Investor Class and Institutional Class share classes)
Large Cap Value
(Investor Class and Institutional Class share classes)
Small/Mid Cap Value
(Investor Class and Institutional Class share classes)
26