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EXHIBIT (e)(ii)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ___ day of ________, 2000 (the
"Agreement") by and between Undiscovered Managers Funds, a Massachusetts
business trust (the "Company") and PFPC Distributors, Inc. (the "Distributor"),
a Massachusetts corporation.
WHEREAS, the Company is registered as a diversified, open-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and is currently offering units of beneficial interest
(such units of all series are hereinafter called the "Shares"), representing
interests in investment portfolios of the Company identified on Schedule A
hereto (the "Funds") which are registered with the Securities and Exchange
Commission (the "SEC") pursuant to the Company's Registration Statement on Form
N-1A (the "Registration Statement"); and
WHEREAS, the Company desires to retain the Distributor as distributor
for the Funds to provide for the sale and distribution of the Shares of the
Funds identified on Schedule A and for such additional classes or series as the
Company may issue, and the Distributor is prepared to provide such services
commencing on the date the Company begins offering Shares to the public.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby the parties hereto
agree as follows:
1. SERVICE AS DISTRIBUTOR
1.1 The Distributor will act on behalf of the Company for the distribution
of the Shares covered by the Registration Statement under the
Securities Act of 1933, as amended (the "1933 Act"). The Distributor
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.
1.2 The Distributor agrees to use efforts deemed appropriate by the
Distributor 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 the Distributor
receives shareholder services fees under any shareholder services plan
adopted by the Company, the Distributor 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 Company as may be required pursuant to such plan. It is
contemplated that the Distributor 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 to the extent permitted by SEC and NASD
regulations or other governing law.
1.3 The Company understands that the Distributor is now, and may in the
future be, the distributor of the shares of several investment
companies or series (collectively, the "Investment Entities"),
including Investment Entities having investment objectives similar to
those of the Company. The Company further understands that investors
and potential investors in the Company may invest in shares of such
other Investment
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Entities. The Company agrees that the Distributor's duties to such
Investment Entities shall not be deemed in conflict with its duties to
the Company under this Section 1.3.
1.4 The Distributor shall not utilize any materials in connection with the
sale or offering of Shares except the Company's prospectus and
statement of additional information and such other materials as the
Company shall provide or approve.
1.5 All activities by the Distributor and its employees, as distributor of
the Shares, shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations
made or adopted by the SEC or the National Association of Securities
Dealers.
1.6 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Company on the
same business day that such orders are received by the Distributor.
1.7 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind,
the Company may decline to accept any orders for, or make any sales of,
the Shares until such time as the Company deems it advisable to accept
such orders and to make such sales, and the Company advises the
Distributor promptly of such determination.
1.8 The Company agrees to pay all costs and expenses in connection with the
registration of Shares under the Securities Act of 1933, as amended,
and all expenses in connection with maintaining facilities for the
issue and transfer of Shares and for supplying information, prices and
other data to be furnished by the Fund hereunder, and all expenses in
connection with the preparation and printing of the Fund's prospectuses
and statements of additional information for regulatory purposes and
for distribution to shareholders.
1.9 The Company agrees at its own expense 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 the Distributor
may designate. The Company shall notify the Distributor in writing of
the states in which the Shares may be sold and shall notify the
Distributor in writing of any changes to the information contained in
the previous notification.
1.10 The Company shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Company
and the Shares as the Distributor may reasonably request; and the
Company warrants that the statements contained in any such information
shall fairly show or represent what they purport to show or represent.
The Company shall also furnish the Distributor upon request with: (a)
audited annual statements and unaudited semi-annual statements of a
Fund's books and accounts prepared by the Company, (b) quarterly
earnings statements prepared by the Company, (c) a monthly itemized
list of the securities in the Funds, (d) monthly balance sheets as soon
as practicable after the end of each month, and (e) from time to time
such additional information regarding the financial condition of the
Company as the Distributor may reasonably request.
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1.11 The Company represents to the Distributor that all Registration
Statements and prospectuses filed by the Company 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. As used in this Agreement, the term "Registration
Statement" shall mean any Registration Statement and any prospectus and
any statement of additional information relating to the Company filed
with the SEC and any amendments or supplements thereto at any time
filed with the SEC. Except as to information included in the
Registration Statement in reliance upon information provided to the
Company by the Distributor or any affiliate of the Distributor
expressly for use in the Registration Statement, the Company represents
and warrants to the Distributor that all statements of fact contained
in any 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. The
Distributor 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 Distributor's counsel, be
necessary or advisable. The Company shall promptly notify the
Distributor of any advice given to it by its counsel regarding the
necessity or advisability of amending or supplementing such
Registration Statement. If the Company shall not propose such amendment
or amendments and/or supplement or supplements within fifteen days
after receipt by the Company of a written request from the Distributor
to do so, the Distributor may, at its option, terminate this Agreement.
The Company shall not file any amendment to any Registration Statement
or supplement to any prospectus without giving the Distributor
reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the Company's right
to file at any time such amendments to any Registration Statements
and/or supplements to any prospectus, of whatever character, as the
Company may deem advisable, such right being in all respects absolute
and unconditional.
1.12 The Company authorizes the Distributor 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. The Company agrees to
indemnify and hold harmless the Distributor, its officers, directors,
and employees, and any person who controls the Distributor 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 the Distributor, 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 Company'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 Company's Registration Statement, prospectus, statement of
additional information or sales literature (including amendments or
supplements thereto), necessary to make the statements therein not
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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 Company
by the Distributor or its affiliated persons for use in the Company'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 the Distributor's performance hereunder (but
excluding such claims, demands, liabilities and expenses (including
such costs and counsel fees) arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact contained in
any registration statement or any prospectus or arising out of or based
upon any omission, or alleged omission, to state a material fact
required to be stated in either any registration statement or any
prospectus or necessary to make the statements in either thereof not
misleading), unless such claims, demands, liabilities and expenses
(including such costs and counsel fees) arise by reason of the
Distributor's willful misfeasance, bad faith or negligence in the
performance of the Distributor's duties hereunder. The Company
acknowledges and agrees that in the event that the Distributor, at the
request of the Company, is required to give indemnification comparable
to that set forth in clause (a) of this Section 1.12 to any
broker-dealer selling Shares of the Company and such broker-dealer
shall make a claim for indemnification against the Distributor, the
Distributor shall make a similar claim for indemnification against the
Company.
1.13 The Distributor agrees to indemnify and hold harmless the Company, its
several officers and Trustees and each person, if any, who controls a
Fund 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 Company, its officers, Trustees 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 Company, its officers or Trustees, 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 Company'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 Company by the Distributor or its affiliated persons (as defined in
the 1940 Act).
1.14 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
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the Indemnifying Party advised with respect to all developments
concerning such situation; provided, however, that the failure to
provide such notice shall not materially adversely affect the
Indemnifying Party. 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. 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. The obligations of
the parties hereto under this Section 1.14 and Section 3.1 shall
survive the termination of this Agreement.
In the event that the Company is the Indemnifying Party and the
Indemnifying Party does not elect to assume the defense of any such
suit, or in case the Distributor reasonably does not approve of counsel
chosen by the Company, or in case there is a conflict of interest
between the Company or the Distributor, the Company will reimburse the
Distributor, its officers, directors and employees, or the controlling
person or persons named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by the Distributor or
them. The Company's indemnification agreement contained in this Section
1.14 and Section 3.1 and the Company's representations and warranties
in this Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the
Distributor, its officers, directors and employees, or any controlling
person, and shall survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to the Distributor's benefit, to the
benefit of its several officers, directors and employees, and their
respective estates and to the benefit of the controlling persons and
their successors. The Company agrees promptly to notify the Distributor
of the commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with the
issue and sale of any Shares.
1.15 No Shares shall be offered by either the Distributor or the Company
under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Company
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
Section 1.15 shall in any way restrict or have any application to or
bearing upon the Company's obligation to redeem Shares tendered for
redemption by any shareholder in accordance with the provisions of the
Company's Registration Statement, Declaration of Trust, or bylaws.
1.16 The Company agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
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(a) of any request by the SEC for amendments to the Registration
Statement, prospectus or statement of additional information then in
effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement, prospectus
or statement of additional information then in effect or the initiation
by service of process on the Company of any proceeding for that
purpose;
(c) of the happening of any event that makes untrue any statement of a
material fact made in the Registration Statement, prospectus or
statement of additional information then in effect or that requires the
making of a change in such Registration Statement, prospectus or
statement of additional information in order to make the statements
therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to any
Registration Statement, prospectus or statement of additional
information which may from time to time be filed with the SEC.
For purposes of this section, informal requests by or acts of the Staff
of the SEC shall not be deemed actions of or requests by the SEC.
1.17 (a) With respect to Class C Shares, the Distributor shall impose a
sales charge in connection with the sale of Class C Shares, not to
exceed a specified percentage of the original purchase price of the
Shares, as from time to time set forth in the then current
Prospectuses. The Distributor shall pay to broker-dealers or other
persons through whom such Class C Shares are sold the sales charge as a
commission or other payment to the extent consistent with the then
current Prospectuses and applicable rules and regulations.
(b) The Distributor may assign or sell to a third party (a "Class C
Financing Entity") all or part of the contingent deferred sales charge
on Class C Shares that the Distributor is entitled to receive under
this Agreement. The Distributor's right to this payment on Class C
Shares sold by the Distributor before termination of this Agreement, if
assigned, pledged or sold to a Class C Financing Entity, shall continue
after termination of this Agreement.
(c)(i) The Distributor shall be entitled to receive all distribution,
account maintenance and service fees at the rate and under the terms
and conditions set forth in the Services and Distribution Plan adopted
by each Series' Class C Shares (the "Plan") on the Class C Shares which
were sold during the period of this Agreement, so long as the Plan is
in effect. The Distributor may assign or sell to a Class C Financing
Entity all or part of the distribution and service fees the Distributor
is entitled to receive from the Company under the Plan. The
Distributor's right to payment on such Shares, if assigned, pledged or
sold to a Class C Financing Entity, shall continue after termination of
this Agreement.
(c)(ii) The Distributor shall not be required to offer or sell Class C
Shares unless and until it has received a binding commitment from a
Class C Financing Entity (a
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"Commitment") reasonably satisfactory to the Distributor. If at any
time during the term of this Agreement the then current Class C
financing is terminated, the Distributor has the right to immediately
suspend Class C Share sales until substitute financing becomes
effective.
(c)(iii) Commissions or payments due to broker-dealers or other persons
for the sale of Class C Shares shall not be due and payable by, and the
payment shall not become an obligation of, the Distributor until the
Distributor receives financing relating to the sale of such Shares from
the Class C Financing Entity. If the Distributor does not receive such
financing, the Distributor shall not be liable for the payment of any
such commission or other payment to any party. This Section (c)(iii)
shall not apply to the payment to broker-dealers of any front-end sales
charge payable to the broker-dealer as a commission or payment pursuant
to Section 1.17(a) and the Prospectus as from time to time in effect.
(d) The Distributor and the Company hereby agree that the terms and
conditions set forth herein regarding the offer and sale of Class C
Shares may be amended upon approval of both parties in order to comply
with the terms and conditions of any agreement with the Class C
Financing Entity to finance the costs for the offer and sale of Class C
Shares so long as such terms and conditions are in compliance with the
Plan.
1.18 The Distributor shall provide the Company's Board of Trustees, at least
quarterly, a written report of the disposition of monies expended
during such period and the purposes for which such expenditures were
made.
2. TERM
2.1 This Agreement shall become effective upon the acquisition by PFPC Inc.
(or one of its affiliates) of all of the outstanding voting securities
of Provident Distributors, Inc. (or a similarly structured transaction)
which is expected to occur on or about December 31, 2000, and, unless
sooner terminated as provided herein, shall continue for an initial
one-year term and thereafter shall be renewed for successive one-year
terms, with respect to each Fund, subject to the termination provisions
and all other terms and conditions thereof, provided such continuance
is specifically approved at least annually by a vote of the Board of
Trustees of the Company and by a vote of the Trustees of the Company
who are not interested persons of the Company and have no direct or
indirect financial interest in the operation of any distribution plan
of the Company adopted pursuant to Rule 12b-1 under the 1940 Act, this
Agreement or any other agreement related to any such plan (the
"Independent Trustees"), cast in person at a meeting called for the
purpose of voting on such approval. This Agreement may be terminated
with respect to any Fund at any time, without the payment of any
penalty, by vote of a majority of the Independent Trustees or by a vote
of a majority of the outstanding voting securities of such Fund on not
less than thirty days' nor more than sixty days' written notice to the
Distributor, or by the Distributor on not less than sixty days' written
notice to the Company. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 1940 Act and the
rules thereunder).
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2.2 In the event a termination notice is given by the Company, all expenses
associated with movement of records and materials and conversion
thereof will be borne by the Company.
3. LIMITATION OF LIABILITY
3.1 The Distributor shall not be liable to the Company for any error of
judgment or mistake of law or for any loss suffered by the Company in
connection with the performance of its obligations and duties under
this Agreement, except a loss resulting from the Distributor's willful
misfeasance, bad faith or negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof.
The Company will indemnify the Distributor against and hold it harmless
from any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of
any sort or kind which may be asserted against the Distributor for
which the Distributor may be held to be liable in connection with this
Agreement or the Distributor's performance hereunder (a "Section 3.1
Claim"), unless such Section 3.1 Claim resulted from a negligent act or
omission to act or bad faith by the Distributor in the performance of
its duties hereunder. The provisions of Section 1.12 shall apply to any
indemnification provided by the Company pursuant to this Section 3.1.
The obligations of the parties hereto under this Section 3.1 shall
survive termination of this Agreement.
3.2 Neither party may assert any cause of action against the other party
under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings)
alleging such cause of action.
3.3 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
3.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL THE DISTRIBUTOR, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY
THEORY OF TORT, CONTRACT, STRICT LIABILITY OF OTHER LEGAL OR EQUITABLE
THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
4. EXCLUSION OF WARRANTIES
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE COMPANY, A FUND OR ANY
OTHER PERSON, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING
QUALITY, SUITABILITY,
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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. THE DISTRIBUTOR DISCLAIMS ANY WARRANTY OF TITLE
OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
5. MODIFICATIONS AND WAIVERS
No change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in writing signed by
each party. No such writing shall be effective as against the
Distributor unless said writing is executed by a Senior Vice President,
Executive Vice President or President of the Distributor. A party's
waiver of a breach of any term or condition in the Agreement shall not
be deemed a waiver of any subsequent breach of the same or another term
or condition.
6. NO PRESUMPTION AGAINST DRAFTER
The Distributor and the Company have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Company and the Distributor, and
no presumptions arise favoring any party by virtue of the authorship of
any provision of this Agreement.
7. PUBLICITY
Neither the Distributor nor the Company shall release or publish news
releases, public announcements, advertising or other publicity relating
to this Agreement or to the transactions contemplated by it without
prior review and written approval of the other party; provided,
however, that either party may make such disclosures as are required by
legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
8. SEVERABILITY
The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or
invalidity shall not affect the validity of the remainder of this
Agreement. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties. Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall
remain fully effective.
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9. FORCE MAJEURE
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default
or delay is caused, directly or indirectly, by (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or
escalation of hostilities, war, riots or civil disorders in any
country, (iii) any act or omission of the other party or any
governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to
satisfy); or (v) nonperformance by a third party or any similar cause
beyond the reasonable control of such party, including without
limitation, failures or fluctuations in telecommunications or other
equipment. In any such event, the non-performing party shall be excused
from any further performance and observance of the obligations so
affected only for so long as such circumstances prevail and such party
continues to use commercially reasonable efforts to recommence
performance or observance as soon as practicable.
10. MISCELLANEOUS
10.1 Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Company or the Distributor shall be
sufficiently given if addressed to the party and received by it at its
office set forth below or at such other place as it may from time to
time designate in writing.
To the Company:
Undiscovered Managers Funds
700 North Pearl Street
Plaza of the Americas
Dallas, TX 75201
Attention: Mark P. Hurley
To the Distributor:
PFPC Distributors, Inc.
400 Bellevue Avenue
Wilmington, Delaware 19809
Attention: President
10.2 The laws of the State of Delaware, excluding the laws on conflicts of
laws, and the applicable provisions of the 1940 Act shall govern the
interpretation, validity, and enforcement of this Agreement. To the
extent the provisions of Delaware law or the provisions hereof conflict
with the 1940 Act, the 1940 Act shall control. All actions arising from
or related to this Agreement shall be brought in the state and federal
courts sitting in the City of Wilmington, Delaware, and the Distributor
and the Company hereby submit themselves to the exclusive jurisdiction
of those courts.
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10.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
10.4 The captions of 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.
10.5 This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and is not intended
to confer upon any other person any rights or remedies hereunder.
11. CONFIDENTIALITY
11.1 The parties agree that the Proprietary Information (defined below) and
the contents of this Agreement (collectively "Confidential
Information") are confidential information of the parties and their
respective licensers. The Company and the Distributor shall exercise
reasonable care to safeguard the confidentiality of the Confidential
Information of the other. The Company and the Distributor may each use
the Confidential Information only to exercise its rights or perform its
duties under this Agreement. Except as required by law, the Company and
the Distributor shall not duplicate, sell or disclose to others the
Confidential Information of the other, in whole or in part, without the
prior written permission of the other party. The Company and the
Distributor may, however, disclose Confidential Information to its
employees who have a need to know the Confidential Information to
perform work for the other, provided that each shall use reasonable
efforts to ensure that the Confidential Information is not duplicated
or disclosed by its employees in breach of this Agreement. The Company
and the Distributor may also disclose the Confidential Information to
independent contractors, auditors and professional advisors, provided
they first agree in writing to be bound by the confidentiality
obligations substantially similar to this Section 11. Notwithstanding
the previous sentence, in no event shall either the Company or the
Distributor disclose the Confidential Information to any competitor of
the other without specific, prior written consent.
11.2 Proprietary Information means:
(a) any data or information that is completely sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Company or the
Distributor, their respective subsidiaries and affiliated companies and
the customers, clients and suppliers of any of them;
(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 Company or the
Distributor a competitive advantage over its competitors: and
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(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
11.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either
party which now exist or come into the control or possession of the
other.
11.4 The Company acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information would
result in immediate and irreparable harm, and money damages would be
inadequate to compensate the Distributor for that harm. The Distributor
shall be entitled to equitable relief, in addition to all other
available remedies, to redress any such breach.
11.5 The obligations of confidentiality and restriction on use herein shall
not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such
party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not
limited to, giving the other party as much advance notice of the
possibility of such disclosure as practical so the other party may
attempt to stop such disclosure or obtain a protective order concerning
such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
12. DIRECTOR/TRUSTEE LIABILITY
The Company and the Distributor agree that the obligations of the
Company 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 Company individually, but are
binding only upon the assets and property of the Company, as provided
in the Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the Trustees of the Company, and
signed by an authorized officer of
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the Company, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them or any shareholder of the
Company individually or to impose any liability on any of them or any
shareholder of the Company personally, but shall bind only the assets
and property of the Company as provided in the Declaration of Trust.
13. ENTIRE AGREEMENT
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
UNDISCOVERED MANAGERS FUNDS
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
PFPC DISTRIBUTORS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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SCHEDULE A
to the Distribution Agreement
between Undiscovered Managers Funds and
PFPC Distributors, Inc.
Name of Funds
Undiscovered Managers Behavioral Growth Fund
Undiscovered Managers Behavioral Value Fund
Undiscovered Managers Behavioral Long/Short Fund
Undiscovered Managers REIT Fund
Undiscovered Managers Special Small Cap Fund
Undiscovered Managers Small Cap Value Fund
Undiscovered Managers Hidden Value Fund
Undiscovered Managers All Cap Value Fund
Undiscovered Managers Core Equity Fund
U M Small Cap Growth Fund
U M International Small Cap Equity Fund
U M International Equity Fund
A-1
