DISTRIBUTION AGREEMENT
OLD MUTUAL ADVISOR FUNDS
THIS AGREEMENT is made as of this ____ day of ______, 2004 between Old
Mutual Advisor Funds (the "Trust"), a Delaware statutory trust, and Old Mutual
Investment Partners (the "Distributor"), a Pennsylvania business trust.
WHEREAS, the Trust is registered as an investment company with the
Securities and Exchange Commission ("SEC") under the Investment Company Act of
1940, as amended (the "1940 Act"), and is authorized to issue units of
beneficial interest ("Shares") in separately designated series ("Funds"), each
with its own objectives, investment program, policies and restrictions; and
WHEREAS, the Trust has registered the Shares of the Funds under the
Securities Act of 1933, as amended (the "1933 Act"), pursuant to a registration
statement on Form N-1A (the "Registration Statement"), which includes
prospectus(es) ("Prospectus") and statement(s) of additional information
("Statement of Additional Information"); and
WHEREAS, the Trust has adopted a Service Plan Pursuant to Rule 12b-1
under the 1940 Act (the "Service Plan") with respect to each of its classes of
shares, i.e., Class A and Class C, and may enter into related agreements
providing for the distribution of the Shares of the Funds; and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the " 1934 Act"); and
WHEREAS, the Trust wishes to engage the services of the Distributor as
principal underwriter and distributor of the Shares of the Funds that now exist
and that hereafter may be established, which are listed on Exhibit A to this
Agreement as may be amended from time to time, and the Distributor is willing to
continue to serve in that capacity.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements hereinafter set forth, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Appointment of Distributor.
(a) The Trust hereby appoints the Distributor as principal underwriter
and distributor of the Funds of the Trust to sell the Shares of the Funds in
jurisdictions wherein the Shares may be legally offered for sale. The
Distributor shall be the exclusive agent for the distribution of Shares of the
Funds; provided, however, that the Trust in its absolute discretion may issue
Shares of the Funds otherwise than through the Distributor in connection with
(i) the payment or reinvestment of dividends or distributions, (ii) any merger
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or consolidation of the Trust or a Fund with any other investment company or
trust or any personal holding company, or the acquisition of the assets of any
such entity by the Trust or any Fund, and (iii) any offer of exchange authorized
by the Board of Trustees of the Trust. Notwithstanding any other provision
hereof, the Trust may terminate, suspend, or withdraw the offering of the Shares
of a Fund or reject any purchase order for Shares, whenever, in its sole
discretion, it deems such action to be desirable.
(b) The Distributor agrees that it will use all reasonable efforts,
consistent with its other business, in connection with the distribution of
Shares of the Trust; provided, however, that the Distributor shall not be
prevented from entering into like arrangements with other issuers. The
provisions of this paragraph do not obligate the Distributor to register as a
broker or dealer under the state Blue Sky laws of any jurisdiction when it
determines it would be uneconomical for it to do so or to maintain its
registration in any jurisdiction in which it is now registered nor obligate the
Distributor to sell any particular number of Shares. The Distributor is
currently registered as a broker-dealer or exempt from registration in all
jurisdictions listed in Exhibit B hereto. The Distributor shall promptly notify
the Trust in the event it fails to maintain its registration in any jurisdiction
in which it is currently registered. The Distributor shall sell Shares of the
Funds as agent for the Trust at prices determined as hereinafter provided and on
the terms set forth herein, all according to applicable federal and state Blue
Sky laws and regulations and the Agreement and Declaration of Trust and By-Laws
of the Trust. The Distributor may sell Shares of the Funds to or through
qualified brokers, dealers or others and shall require each such person to
conform to the provisions hereof, the Registration Statement, the then current
Prospectus and Statement of Additional Information, and applicable law. Neither
the Distributor nor any such person shall withhold the placing of purchase
orders for Shares so as to make a profit thereby.
(c) The Distributor shall order Shares of the Funds from the Trust only
to the extent that it shall have received purchase orders therefor. The
Distributor will not make, or authorize any brokers, dealers, or others to make,
(i) any short sales of Shares or (ii) any sales of Shares to any Trustee or
officer of the Trust, the Distributor, or any corporation or association
furnishing investment advisory, managerial, or supervisory services to the
Trust, or to any such corporation or association, unless such sales are made in
accordance with the Trust's then current Prospectus and Statement of Additional
Information.
(d) The Distributor is not authorized by the Trust to give any
information or to make any representation other than those contained in the then
current Prospectus, Statement of Additional Information, and Fund shareholder
reports ("Shareholder Reports"), or in supplementary sales materials
specifically approved by the Trust. The Distributor may prepare and distribute
sales literature and other material as it may deem appropriate, provided that
such literature and materials have been approved by the Trust prior to their
use.
2. Offering Price of Shares. All Shares of each Fund sold under this
Agreement shall be sold at the public offering price per Share in effect at the
time of the sale as described in the Trust's then current Prospectus and
Statement of Additional Information; provided, however that any public offering
price for the Shares shall be based upon the net asset value per Share, as
determined in the manner described in the Trust's then current Prospectus and/or
Statement of Additional Information. At no time shall the Trust receive less
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than the full net asset value of the Shares, determined in the manner set forth
in the then current Prospectus and/or Statement of Additional Information.
3. Registration of Shares. The Trust agrees that it will take all
actions necessary to register Shares under the Federal and state Blue Sky
securities laws so that there will be available for sale the number of Shares
the Distributor may reasonably be expected to sell and to pay all fees
associated with said registration.
4. Service Plan Payments.
(a) The Trust has adopted a Service Plan pursuant to Rule
12b-1 under 1940 Act to enable each class of Shares of each Fund to directly and
indirectly bear certain expenses relating to the distribution of such Shares.
Pursuant to such Service Plans, the Trust shall pay a service fee as set forth
in the Service Plan. The shareholder servicing fee is intended to compensate the
distributor for, among other things, providing or arranging with and paying
others to provide to shareholders or the underlying beneficial owners of Class A
and Class C Shares: (a) personal support services and (b) account maintenance
services.
(b) The Distributor shall prepare and deliver written reports
to the Board of Trustees of the Trust on a regular basis (at least quarterly)
setting forth the payments made to Service Providers pursuant to the Service
Plan, and the purposes for which such expenditures were made, as well as any
supplemental reports as the Board of Trustees of the Trust may from time to time
reasonably request.
5. Payment of Expenses.
(a) Except as otherwise provided herein, the Distributor shall
pay, or arrange for others to pay, all of the following expenses: (i) payments
to sales representatives of the Distributor and at the discretion of the
Distributor to qualified brokers, dealers and others in respect of the sale of
Shares of the Funds; (ii) compensation and expenses of employees of the
Distributor who engage in or support distribution of Shares of the Funds or
render shareholder support services not otherwise provided by the Trust's
transfer and shareholder servicing agent; and (iii) the cost of obtaining such
information, analyses, and reports with respect to marketing and promotional
activities as the Trust may from time to time reasonably request.
(b) The Trust shall pay, or arrange for others to pay, the
following expenses: (i) preparation, printing, and distribution to shareholders
of Prospectuses and Statements of Additional Information; (ii) preparation,
printing, and distribution of Shareholder Reports and other communications
required by law to shareholders; (iii) registration of the Shares of the Funds
under the federal securities laws; (iv) qualification of the Shares of the Funds
for sale in such states as the Distributor and the Trust may approve; (v)
maintaining facilities for the issue and transfer of Shares; (vi) supplying
information, prices, and other data to be furnished by the Trust under this
Agreement; and (vii) taxes applicable to the sale or delivery of the Shares of
the Funds or certificates therefore.
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(c) In connection with the Distributor's distribution of sales
materials, Prospectuses, Statements of Additional Information, and Shareholder
Reports to potential investors in the Trust, the Trust shall make available to
the Distributor such number of copies of such materials as the Distributor may
reasonably request. The Trust shall also furnish to the Distributor copies of
all information, financial statements and other documents the Distributor may
reasonably request for use in connection with the distribution of Shares of the
Trust. The Trust will enter into arrangements providing that persons other than
the Trust will bear any and all expenses of preparing, printing and providing to
the Distributor, sales materials, Prospectuses, Statements of Additional
Information and Shareholder Reports for distribution to potential investors in
the Trust.
6. Compensation. Except as provided in the Service Plan, it is
understood that the Distributor will not receive any commissions or other
compensation for acting as the Trust's principal underwriter and distributor.
7. Repurchase of Shares. The Distributor as agent and for the account
of the Trust may repurchase Shares of the Funds offered for resale to it and
redeem such Shares at their net asset value, subject to any applicable
redemption fee, determined as set forth in the then current Prospectus and
Statement of Additional Information.
8. Indemnification of Distributor. The Trust 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,
damages, claim, or expense, and any reasonable counsel fees and disbursements
incurred in connection therewith), including claims of third parties, arising by
reason of any person acquiring any Shares, based upon the ground that the
Registration Statement, Prospectuses, Statements of Additional Information,
Shareholder Reports or other information filed or made public by the Trust (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 made not misleading. However, the Trust does not agree to
indemnify the Distributor or hold it harmless to the extent that the statements
or omission was made in reliance upon, and in conformity with, information
furnished to the Trust by or on behalf of the Distributor.
In no case (i) is the indemnity of the Trust to be deemed to protect
the Distributor against any liability to the Trust or its shareholders to which
the Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in its performance of its duties or
by reason of its failure to exercise due care in rendering its services and
duties under this Agreement, or (ii) is the Trust to be liable to the
Distributor under the indemnity agreement contained in this section with respect
to any claim made against the Distributor or any person indemnified unless the
Distributor or other person shall have notified the Trust 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 such other person (or after the Distributor or
the person shall have received notice of service on any designated agent).
However, failure to notify the Trust of any claim shall not relieve the Trust
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from any liability which it may have to the Distributor or any person against
whom such action is brought otherwise than on account of its indemnity agreement
contained in this section.
The Trust 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 subject to this indemnity provision. If the Trust elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Trust
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Trust does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
The Trust 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 its Shares.
9. Indemnification of Trust. The Distributor covenants and agrees that
it will indemnify and hold harmless the Trust and each of its directors and
officers and each person, if any, who controls the Trust 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 and
disbursements incurred in connection therewith) based upon the 1933 Act or any
other statute or common law and arising by reason of any person acquiring any
Shares, and alleging (i) a wrongful act or deed of the Distributor or any of its
employees or sales representatives, or (ii) that the Registration Statement,
Prospectuses, Statements of Additional Information, shareholder reports or other
information filed or made public by the Trust (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 any such statements or omissions were made in reliance
upon and in conformity with information furnished to the Trust by or on behalf
of the Distributor.
In no case (i) is the indemnity of the Distributor in favor of the
Trust or any other person indemnified to be deemed to protect the Trust or any
other person against any liability to which the Trust or such other person would
otherwise be subject by reason of willful misfeasance or bad faith or gross
negligence in the performance of its duties, or (ii) is the Distributor to be
liable under its indemnity agreement contained in this section with respect to
any claim made against the Trust or any person indemnified unless the Trust 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 Trust or upon any person (or after the Trust or such person
shall have received notice of service on any designated agent). However, failure
to notify the Distributor of any claim shall not relieve the Distributor from
any liability which it may have to the Trust or any person against whom the
action is brought otherwise than on account on its indemnity agreement contained
in this section.
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The Distributor 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 the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and satisfactory
to the indemnified defendants, whose approval shall not be unreasonably
withheld. In the event that the Distributor elects to assume the defense of any
suit and retain counsel, the defendants 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 indemnified
defendants in the suit for the reasonable fees and expenses of any counsel
retained by them.
The Distributor agrees to notify the Trust promptly of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any of the Trust's Shares.
10. Term and Termination.
(a) This Agreement shall become effective as of the date
hereof. Unless sooner terminated as herein provided, this Agreement shall remain
in full force and effect for two (2) years from the effective date and
thereafter for successive periods of one year, but only so long as each such
continuance is specifically approved at least annually (i) either by vote of a
majority of the Board of Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Trust, and (ii) by vote of a majority of
the Trustees of the Trust who are not interested persons of the Trust and who
have no direct or indirect financial interest in the operation of the Service
Plan or in this Agreement or any other agreement related to the Service Plan
(the "Rule 12b-1 Trustees"), cast in person at a meeting called for the purpose
of voting on such approval.
(b) This Agreement may be terminated at any time, without the
payment of any penalty, by the Board of Trustees of the Trust or a majority of
the Rule 12b-1 Trustees, by vote of a majority of the outstanding voting
securities of the Trust, or by the Distributor, on not less than ninety (90)
days' written notice to the other party or upon such shorter notice as may be
mutually agreed upon.
(c) This Agreement shall automatically terminate in the event
of its assignment.
(d) The indemnification provisions contained in Sections 8 and
9 of this Agreement shall remain in full force and effect regardless of any
termination of this Agreement.
11. Amendment. No provisions of this Agreement may be changed, waived,
discharged, or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge, or
termination is sought. In addition, no amendment of this Agreement shall be
effective until approved by an affirmative vote of (i) a majority of the
outstanding voting securities of the Trust, and (ii) a majority of the Trustees,
including a majority of Trustees who are not interested persons of any party to
this Agreement. If the Trust should at any time deem it necessary or advisable
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in the best interests of the Trust that any amendment of this Agreement be made
in order to comply with the recommendations or requirements of the SEC or other
governmental authority or to obtain any advantage under state or federal tax
laws and notifies Distributor of the form of such amendment, and the reasons
therefor, and if Distributor should decline to assent to such amendment, the
Trust may terminate this Agreement forthwith. If Distributor should at any time
request that a change be made in the Trust's Agreement and Declaration of Trust
or By-Laws or in its methods of doing business, in order to comply with any
requirements of Federal law or regulations of the SEC, or of a national
securities association of which Distributor is or may be a member relating to
the sale of Shares, and the Fund should not make such necessary change within a
reasonable time, Distributor may terminate this Agreement forthwith.
12. Independent Contractor. Distributor shall be an independent
contractor and neither Distributor nor any of its officers, directors,
employees, or representatives is or shall be an employee of the Trust in the
performance of Distributor's duties hereunder. Distributor shall be responsible
for its own conduct and the employment, control, and conduct of its agents and
employees and for injury to such agents or employees or to others through its
agents or employees. Distributor assumes full responsibility for its agents and
employees under applicable statutes and agrees to pay all employee taxes
thereunder.
13. Definition of Certain Terms. For purposes of this Agreement the
terms "assignment," "interested person," "majority of the outstanding voting
securities," and "principal underwriter" shall have their respective meanings
defined in the 1940 Act and the rules and regulations thereunder, subject,
however, to such exemptions as may be granted to either the Distributor or the
Trust by the SEC, or such interpretative positions as may be taken by the SEC or
its staff under the 1940 Act.
14. Notice. Any notice under this Agreement shall be deemed to be
sufficient if it is given in writing, addressed and delivered, or mailed
postpaid (a) if to the Distributor, to Old Mutual Investment Partners,
[ADDRESS], Attention: President; and (b) if to the Trust, to Old Mutual Advisor
Funds, [ADDRESS], Attention: President.
15. Captions. The captions in this Agreement are included for
convenience of reference only and in no other way define or delineate any of the
provisions hereof or otherwise affect construction or effect.
16. Interpretation. Nothing herein contained shall be deemed to require
the Trust or the Distributor to take any action contrary to its Agreement and
Declaration of Trust or By-Laws, or any applicable statutory or regulatory
requirement to which it is subject or by which it is bound, or to relieve or
deprive the Board of Trustees of its responsibility for and control of the
conduct of the affairs of the Trust.
17. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the applicable provisions of the 1940 Act.
To the extent that the applicable laws of the State of Delaware or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
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18. Multiple Originals. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Trust and Distributor have each duly executed
this Agreement, as of the day and year above written.
OLD MUTUAL ADVISOR FUNDS
By: ______________________
Name:____________________
Title: _____________________
OLD MUTUAL INVESTMENT PARTNERS
By: _______________________
Name:_____________________
Title: ______________________
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EXHIBIT A
Dated _______________
To Distribution Agreement Between
Old Mutual Advisor Funds and
Old Mutual Investment Partners
Dated ____________
OM Asset Allocation Conservative Portfolio
OM Asset Allocation Balanced Portfolio
OM Asset Allocation Moderate Portfolio
OM Asset Allocation Growth Portfolio
___________, 2004
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Exhibit B
Dated _______________
To Distribution Agreement Between
Old Mutual Advisor Funds and
Old Mutual Investment Partners
Dated ____________
All 50 states of the United States of America, Puerto Rico and the District
of Columbia
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