DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "AGREEMENT') is made as of this 27(th) day of
January, 2017 and shall become effective only upon approval by the Trust's (as
defined below) board of trustees, expected to occur on or about February 10,
2017, by and between Xxxxxxxx Series Trust (the "TRUST"), a statutory trust
formed under the laws of Massachusetts, and SEI Investments Distribution Co.
(the "DISTRIBUTOR"), a Pennsylvania corporation.
WHEREAS, the Trust is registered as an investment company with the U.S.
Securities and Exchange Commission (the "SEC") under the Investment Company Act
of 1940, as amended (the "1940 ACT"), and its shares of beneficial interest
("SHARES") are registered with the SEC under the Securities Act of 1933, as
amended (the "1933 ACT"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 ACT") and is a
member of Financial Industry Regulatory Authority, Inc. ("FINRA"); and
WHEREAS, the Trust wishes to retain the Distributor to serve as distributor of
each portfolio of the Trust (each a "FUND" and collectively, the "FUNDS") and
for such additional Funds that the Trust may create, on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained
and intending to be legally bound, the parties hereby agree as follows:
SECTION 1 APPOINTMENT
1.1 PRINCIPAL UNDERWRITER. The Trust hereby appoints Distributor as its
principal underwriter and distributor of Shares of the Funds and to provide such
other services in accordance with the terms set forth in this Agreement.
Distributor accepts such appointment and agrees to furnish certain related
services as set forth in this Agreement.
1.2 DIRECT SALES. Notwithstanding Distributor's appointment as principal
underwriter and distributor of Shares of the Funds, the Trust and each Fund
reserve the right to make direct sales of Shares without sales charges
consistent with the terms of the then current Prospectus, and to engage in other
legally authorized transactions in its Shares which do not involve the sale of
Shares to the general public. As used in this Agreement, the term, "PROSPECTUS"
means any prospectus, registration statement, statement of additional
information, proxy solicitation, annual or other periodic report of the Trust or
any Fund of the Trust or any advertising, marketing, shareholder communication,
or promotional material generated by the Trust, an Investment Advisor (as
defined herein) or sub-advisor from time to time, as appropriate, including all
amendments or supplements thereto and applicable law. Such other transactions
may include, without limitation, transactions between the Trust or any Fund or
class and its Shareholders only; transactions involving the reorganization of
the Trust or any Fund; and transactions involving the merger or combination of
the Trust or any Fund with another corporation or trust.
SECTION 2 SOLICITATION OF SALES AND OTHER SERVICES
2.1 SOLICITATION OF SALES. The Trust grants to Distributor the right to
sell its Shares authorized for issue, at the net asset value per Share, plus any
applicable sales charges, in accordance with the Prospectus, as agent and on
behalf of the Trust, during the term of this Agreement and subject to the
registration requirements of the 1933 Act, the rules and regulations of the SEC
and the laws governing the sale of securities in the various states ("BLUE SKY
LAWS"). Distributor will have the right, as agent, to sell shares of a Fund
indirectly to the public through broker-dealers which are members of FINRA and
which are acting as introducing brokers pursuant to clearing agreements with
Distributor; to broker-dealers which are members of FINRA and who have entered
into selling agreements with Distributor; or
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through other financial intermediaries, in each case against orders therefore.
In consideration of these rights granted to the Distributor, the Distributor
agrees to use all reasonable efforts to secure purchasers for shares of the
Trust; PROVIDED, HOWEVER, that the Distributor will not be prevented from
entering into like arrangements (including arrangements involving the payment
of underwriting commissions) with other issuers. The provisions of this
paragraph do not obligate the Distributor to register as a broker or dealer
under the Blue Sky Laws of any jurisdiction or laws of any foreign jurisdiction
in which it is not now registered or to maintain its registration in any
jurisdiction in which it is now registered or obligate the Distributor to sell
any particular number of Shares. The Distributor will not direct remuneration
from commissions paid by the Trust for portfolio securities transactions to a
broker or dealer for promoting or selling Fund Shares. The Trust reserves the
right to refuse at any time or times to sell any of its Shares for any reason
deemed adequate by it. All orders through the Distributor will be subject to
acceptance and confirmation by the Trust.
2.2 OTHER SERVICES. Without limiting the foregoing, the Distributor will
perform or supervise the performance by others of the additional services set
forth herein, including those set forth in SCHEDULE A, attached hereto.
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRUST. The Trust
represents, warrants and covenants that:
(a) it is duly organized, validly existing and in good standing under the
laws of the state of its formation, and has all requisite power under the laws
of such state and applicable federal law to conduct its business as now being
conducted and to perform its obligations as contemplated by this Agreement;
(b) this Agreement has been duly authorized by the board of trustees of the
Trust, including by unanimous affirmative vote of all of the independent
directors of the Trust; and when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms;
(c) it shall timely perform all obligations identified in this Agreement as
obligations of the Trust, including, without limitation, providing the
Distributor with all marketing materials reasonably requested by the Distributor
and giving all necessary consents or approvals in good faith and within a timely
manner;
(d) it is not a party to any, and it is not aware of any pending or
threatened legal, administrative, arbitral or other proceedings, claims, actions
or governmental or regulatory investigations or inquiries (collectively,
"ACTIONS") of any nature against it, its advisor or its properties or assets
which could, individually or in the aggregate, have a material effect upon its
business or financial condition, and there is no injunction, order, judgment,
decree, or regulatory restriction imposed upon it or any of its properties or
assets;
(e) it is an investment company that is duly registered under all
applicable laws and regulations, including, without limitation the 1940 Act, and
each Fund is a separate portfolio of the Trust;
(f) it is and will continue to be in compliance with all applicable laws
and regulations aimed at the prevention and detection of money laundering and/or
the financing of terrorism activities including Bank Secrecy Act, as amended by
USA PATRIOT Act, U.S. Treasury Department, including the Office of Foreign Asset
Control ("OFAC"), Financial Crimes and Enforcement Network ("FINCEN") and the
SEC
(g) it has an anti-money laundering program ("AML PROGRAM"), that at
minimum
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includes, (i) an AML compliance officer designated to administer and oversee
the AML Program, (ii) ongoing training for appropriate personnel, (iii)
internal controls and procedures reasonably designed to prevent and detect
suspicious activity monitoring and terrorist financing activities; (iv)
procedures to comply with know your customer requirements and to verify the
identity of all customers; and (v) appropriate record keeping procedures;
(h) each Prospectus has been prepared in accordance with all applicable
laws and regulations and, at the time such Prospectus was filed with the SEC and
became effective, no Prospectus will include an untrue statement of a material
fact or omit to state a material fact that is required to be stated therein so
as to make the statements contained in such Prospectus not misleading;
(i) it will notify the Distributor as soon as reasonably practical in
advance of any matter which could materially affect the Distributor's
performance of its duties and obligations under this Agreement, including any
amendment to the Prospectus;
(j) it will provide Distributor with a copy of each Prospectus as soon as
reasonably possible prior to or contemporaneously with filing the same with an
applicable regulatory body;
(k) it shall fully cooperate with requests from government regulators and
the Distributor for information relating to customers and/or transactions
involving the Shares, as permitted by law, in order for the Distributor to
comply with its regulatory obligations; and
(l) in the event it determines that it is in the interest of the Trust to
suspend or terminate the sale of any Shares, the Trust shall promptly notify the
Distributor of such fact in advance and in writing prior to the date on which
the Trust desires to cease offering the Shares.
3.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF DISTRIBUTOR. Distributor
hereby represents, warrants and covenants as follows:
(a) it has full power, right and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby; the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all requisite actions
on its part, and no other proceedings on its part are necessary to approve this
Agreement or to consummate the transactions contemplated hereby; this Agreement
has been duly executed and delivered by it; this Agreement constitutes a legal,
valid and binding obligation, enforceable against it in accordance with its
terms;
(b) it is not a party to any, and it is not aware of any pending or
threatened Actions of any nature against it or its properties or assets which
could, individually or in the aggregate, have a material effect upon its
business or financial condition, and there is no injunction, order, judgment,
decree, or regulatory restriction imposed specifically upon it or any of its
properties or assets;
(c) it is registered as a broker-dealer with the SEC under the 1934 Act and
a member of FINRA;
(d) it shall not give any information or to make any representations other
than those contained in the current Prospectus of the Company filed with the SEC
or contained in shareholder reports or other material that may be prepared by or
on behalf of the Company for the Distributor's use; and
(e) it may prepare and distribute sales literature and other material as it
may deem appropriate, provided that such literature and materials have been
prepared in accordance with applicable rules and regulations.
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SECTION 4 REGISTRATION OF SHARES
The Trust agrees that it will take all action necessary to register Shares
under the federal and state securities laws so that there will be available for
sale the number of Shares the Distributor (and each financial intermediary, as
applicable) may reasonably be expected to sell and to pay all fees associated
with said registration. The Trust will make available to the Distributor such
number of copies of its Prospectus as the Distributor may reasonably request.
The Trust will furnish to the Distributor copies of all information, financial
statements and other papers which the Distributor may reasonably request for
use in connection with the distribution of Shares of the Trust.
SECTION 5 AGREEMENTS WITH FINANCIAL INTERMEDIARIES
The Distributor will have the right to enter into agreements with financial
intermediaries of its choice for the sale of Shares and to fix therein the
portion of the sales charge and/or other fees, if any, that may be allocated to
the financial intermediaries on such terms and conditions as the Distributor
will deem necessary or appropriate. Shares offered through financial
intermediaries will be for resale by such intermediaries only at the net asset
value set forth in the applicable Prospectus or as otherwise permissible under
the federal and state securities laws. With respect to financial intermediaries
who are acting as brokers or dealers within the United States, the Distributor
will offer and sell Shares, as agent for the Trust, only to such financial
intermediaries who are members in good standing of FINRA. The Trust
acknowledges that Distributor may act as the Trust's agent for transmitting, or
arranging for transmission of, distribution and/or shareholder servicing fees
to be paid to financial intermediaries in accordance with arrangements between
the Trust and such financial intermediaries.
SECTION 6 EXPENSES
6.1 TRUST EXPENSES. The Trust will pay all fees and expenses (i) in
connection with the preparation, setting in type and filing of any Prospectus
under the 1933 Act and amendments for the issue of its Shares; (ii) in
connection with the registration and qualification of Shares for sale in the
various states in which the Board of Trustees of the Trust will determine
advisable to qualify such Shares for sale; (iii) of preparing, setting in type,
printing and mailing any report or other communication to shareholders of the
Trust in their capacity as such; and (iv) of preparing, setting in type,
printing and mailing any Prospectus sent to existing shareholders.
6.2 DISTRIBUTOR EXPENSES. Distributor will pay all of its costs and
expenses (other than expenses and costs deemed payable by the Funds and other
than expenses which one or more dealers may bear pursuant to any agreement with
Distributor) incurred by it in connection with the performance of its
distribution duties hereunder.
SECTION 7 COMPENSATION
7.1 COMPENSATION TO DISTRIBUTOR. As compensation for providing the services
under this Agreement, the Distributor will receive from the Trust:
(a) all distribution and service fees, as applicable, at the rate and under
the terms and conditions set forth in each Fund's distribution planand/or
shareholder services and similar plans applicable to the appropriate class of
shares of each Fund, as such plans may be amended from time to time, and subject
to any further limitations on such fees as the Board of Trustees of the Trust
may impose;
(b) all front-end sales charges, if any, on purchases of Shares of each
Fund sold subject to such charges as described in the Trust's Prospectus, as
amended from time to time. The Distributor, or brokers, dealers and other
financial institutions and intermediaries that have entered into
sub-distribution agreements with the Distributor, may collect the gross proceeds
derived from the sale of
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such Shares, remit the net asset value thereof to the Trust upon receipt of the
proceeds and retain the applicable sales charge; and
(c) all contingent deferred sales charges ("CDSC"), if any, applied on
redemptions of Shares subject to such charges on the terms and subject to such
waivers as are described in the Trust's Prospectus, or as otherwise required
pursuant to applicable law.
7.2 PAYMENTS TO FINANCIAL INTERMEDIARIES. The Distributor may re-allow any
or all of the distribution or service fees, front-end sales charges and CDSCs
that it is paid by the Trust to such brokers, dealers and other financial
institutions and intermediaries as the Distributor may from time to time
determine.
7.3 COMMISSIONS. Distributor may participate directly or indirectly in
brokerage commissions or "spreads" for transactions in portfolio securities of
the Trust that are bought or sold through Distributor.
SECTION 8 INDEMNIFICATION; CONTRIBUTION; LIMITATION OF LIABILITY
8.1 INDEMNIFICATION OF DISTRIBUTOR. The Trust agrees to indemnify, defend
and hold harmless, the Distributor, each of its directors, officers, employees
and each person, if any, who controls, is controlled by or is under common
control with, the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the "DISTRIBUTOR INDEMNIFIED PARTIES") from and against any and
all losses, claims, damages or liabilities, joint or several, whatsoever
(including any investigation, legal or other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted) to which the Distributor Indemnified Parties may become
subject, arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or any document
incorporated by reference therein or filed as an exhibit thereto, or any
marketing literature or materials distributed on behalf of the Trust with
respect to the securities covered by the Prospectus (the "COVERED DOCUMENTS") or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Distributor for any legal or other expenses reasonably
incurred by the Distributor in connection with investigating or defending any
such action or claim as such expenses are incurred; (ii) any claims of
infringement or misappropriation of the intellectual property rights of a third
party against the Distributor arising out of or based on the use by the
Distributor of any intellectual property of such third party, including, without
limitation, indexes, strategies or trademarks that serve as the basis for the
Funds or are used by the Funds (the "INTELLECTUAL PROPERTY") in connection with
its duties as Distributor pursuant to this Agreement, regardless of whether such
third party's rights or claims of rights to such Intellectual Property were
disclosed to Distributor and (iii) any breach of any representation, warranty or
covenant made by the Trust in this Agreement; provided; provided, however, that
the Trust shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Covered
Documents about the Distributor in reliance upon and in conformity with written
information furnished to the Trust by the Distributor expressly for use therein.
8.2 INDEMNIFICATION OF THE TRUST. Distributor will indemnify and hold
harmless the Trust, each of its directors, officers, employees and each person,
if any, who controls, is controlled by or is under common control with, the
Trust within the meaning of Section 15 of the 1933 Act (collectively, the "TRUST
INDEMNIFIED PARTIES") from and against any and all losses, claims, damages or
liabilities, joint or several, whatsoever (including any investigation, legal or
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted) to which the Trust
Indemnified Parties may become subject, to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Covered Document, in reliance upon and in conformity
with written information furnished to the Trust by the Distributor about the
Distributor expressly for use therein.
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8.3 INDEMNIFICATION PROCEDURES.
(a) If any action or claim shall be brought against any Distributor
Indemnified Party or Trust Indemnified Party (any such party, an "INDEMNIFIED
PARTY" and collectively, the "INDEMNIFIED PARTIES"), in respect of which
indemnity may be sought against the other party hereto, such Indemnified Party
shall promptly notify the indemnifying party in writing, and the indemnifying
party shall assume the defense thereof, including the employment of counsel and
payment of all fees and expenses; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party except to the extent such indemnifying party has been
materially prejudiced by such failure.
(b) Any Indemnified Party shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the indemnifying party has agreed in writing to pay such fees and
expenses, (ii) the indemnifying party has failed to assume the defense and
employ counsel, or (iii) the named parties to any such action (including any
impleaded party) included such Indemnified Party and the indemnifying party and
such Indemnified Party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party or which may also result in a conflict
of interest (in which case if such Indemnified Party notifies the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
such Indemnified Parties.
(c) No indemnifying party shall, without the written consent of the
Indemnified Party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the Indemnified Party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnified Party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any Indemnified
Party.
(d) The indemnifying party shall not be liable for any settlement of any
such action effected without its written consent, but if such action is settled
with the written consent of the indemnifying party, or if there shall be a final
judgment for the plaintiff in any such action and the time for filing all
appeals has expired, the indemnifying party agrees to indemnify and hold
harmless any Indemnified Party from and against any loss or liability by reason
of such settlement or judgment.
(e) The obligations of the indemnifying party under this SECTION 8 shall be
in addition to any liability that the indemnifying party may otherwise have.
8.4 CONTRIBUTION. If the indemnification provided for in this SECTION 8 is
insufficient or unavailable to any Indemnified Party under this SECTION 8 in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the Trust on the one hand and the Distributor on
the other from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the Indemnified Party failed to give the notice required under SECTION 8.3(A),
above, then each indemnifying party shall contribute to such amount paid or
payable by such Indemnified Party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Trust
on the one hand and the Distributor on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable
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considerations. The relative benefits received by the Trust on the one hand and
the Distributor on the other shall be deemed to be in the same proportion as
the amount of gross proceeds received by the Trust from the offering of the
Shares under this Agreement (expressed in dollars) bears to the net profits
received by the Distributor under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Trust on the one
hand or the Distributor on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Trust and the Distributor agree that it would not be
just and equitable if contributions pursuant to this SECTION 8.4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to herein. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8.5 CONSEQUENTIAL DAMAGES. In no event and under no circumstances will
either party to this Agreement be liable to anyone, including, without
limitation, the other party, for special, indirect, punitive or consequential
damages for any act or failure to act under any provision of this Agreement.
8.6 LIMITATION OF LIABILITY. A copy of the Declaration of Trust
establishing the Trust is on file in the Office of the Secretary of State of the
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed on behalf of the Trustees of the Trust as Trustees and not individually
and that the obligations of this instrument are not binding upon any of the
Trustees, officers or shareholders of the Trust individually but binding only
upon the assets and property of the Trust.
SECTION 9 TERM AND TERMINATION
This Agreement will be effective upon its execution, and, unless terminated as
provided, will continue in force for two years and thereafter from year to
year, provided that such annual continuance is approved by either (i) the vote
of a majority of the Trustees of the Trust, or the vote of a majority of the
outstanding voting securities of the Trust and (ii) the vote of a majority of
those Trustees of the Trust who are not parties to this Agreement or the
Trust's distribution plan(s) or interested persons of any such party
("QUALIFIED TRUSTEES"), cast in person at a meeting called for the purpose of
voting on the approval. This Agreement may be terminated at any time without
penalty by a vote of the Trustees; by vote of a majority of the outstanding
voting securities of the Trust; or by the Distributor upon not less than sixty
days prior written notice to the other party; and shall automatically terminate
upon its assignment. As used in this paragraph the terms, "vote of a majority
of the outstanding voting securities," "assignment" and "interested person"
will have the respective meanings specified in the 1940 Act. In the event the
Trust gives notice of termination, all expenses associated with the movement
(or duplication) of records and materials and conversion thereof to a successor
service provider, and all trailing expenses incurred by Distributor, will be
borne by the Trust.
SECTION 10 MISCELLANEOUS
10.1 RECORDS. The books and records pertaining to the Trust, which are in
the possession or under the control of Distributor, will be the property of the
Trust. Such books and records will be prepared and maintained as required under
the 1940 Act and other applicable securities laws, rules and regulations. The
Trust and its authorized persons will have access to such books and records at
all times during the Distributor's normal business hours. Upon the reasonable
request of the Trust, the Distributor will provide copies of such books and
records to the Trust or its authorized persons, at the Trust's expense.
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10.2 INDEPENDENT CONTRACTOR. The Distributor will undertake and discharge
its obligations hereunder as an independent contractor. Neither Distributor nor
any of its officers, directors, employees or representatives is or will be an
employee of a Fund in connection with the performance of Distributor's duties
hereunder. Distributor will be responsible for its own conduct and the
employment, control, compensation and conduct of its agents and employees, and
for any injury to such agents or employees or to others through its agents and
employees. Any obligations of Distributor hereunder may be performed by one or
more third parties or affiliates of Distributor.
10.3 NOTICES. All notices provided for or permitted under this Agreement
will be deemed effective upon receipt, and will be in writing and (a) delivered
personally, (b) sent by commercial overnight courier with written verification
of receipt, or (c) sent by certified or registered U.S. mail, postage prepaid
and return receipt requested, to the party to be notified, at the address for
such party set forth below. Notices to the Distributor will be sent to the
attention of: General Counsel, SEI Investments Distribution Co., 0 Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000. Notices to the Trust will be sent to
Xxxxxxxx Series Trust, 0 Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000,
attention Xxxxxxx Xxxxxxx, President.
10.4 DISPUTE RESOLUTION. Whenever either party desires to institute legal
proceedings against the other party concerning this Agreement, it will provide
written notice to that effect to such other party. The party providing such
notice will refrain from instituting said legal proceedings for a period of
thirty (30) days following the date of provision of such notice. During such
period, the parties will attempt in good faith to amicably resolve their dispute
by negotiation among their executive officers.
10.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement, draft
or agreement or proposal with respect to the subject matter hereof. This
Agreement or any part hereof may be amended or waived only by an instrument in
writing signed by the party against which enforcement of such amendment or
waiver is sought.
10.6 NON-SOLICITATION. During the term of this Agreement and for a period
of one (1) year afterward, the Trust will not recruit, solicit, employ or
engage, for the Trust or any other person, any of the Distributor's employees.
10.7 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without giving effect to any
conflict of laws or choice of laws rules or principles thereof. To the extent
that the applicable laws of the State of New York, or any of the provisions of
this Agreement, conflict with the applicable provisions of the 1940 Act, the
latter will control.
10.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which will constitute one and the same instrument. Each
such counterpart will be deemed an original, and it will not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart. This Agreement will be deemed executed by both parties when any one
or more counterparts hereof or thereof, individually or taken together, bears
the original, scanned or facsimile signatures of each of the parties.
10.9 FORCE MAJEURE. No breach of any obligation of a party to this
Agreement (other than obligations to pay amounts owed) will constitute an event
of default or breach to the extent it arises out of a cause, existing or future,
that is beyond the control and without negligence of the party otherwise
chargeable with breach or default, including without limitation: work action or
strike; lockout or other labor dispute; flood; war; riot; theft; act of
terrorism, earthquake or natural disaster; provided, however, that the
Distributor shall adopt and maintain commercially reasonable procedures to avoid
business interruptions resulting from a force majeure event, including but not
limited to disaster recovery, back-up and offsite data storage, alternate work
sites, etc. For as long as such circumstances prevail, the party whose
performance is delayed or hindered shall continue to use commercially reasonable
efforts to minimize the length and effect of delays and shall re-commence
performance promptly after the cessation of the force MAJEURE EVENT. EITHER
PARTY DESIRING TO RELY UPON ANY OF THE FOREGOING AS AN EXCUSE FOR DEFAULT OR
BREACH
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will, when the cause arises, give to the other party prompt notice of the facts
which constitute such cause; and, when the cause ceases to exist, give prompt
notice thereof to the other party.
10.10 SEVERABILITY. Any provision of this Agreement that is determined to
be invalid or unenforceable in any jurisdiction will be ineffective to the
extent of such invalidity or unenforceability in such jurisdiction, without
rendering invalid or unenforceable the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. If a court of competent jurisdiction declares any provision of
this Agreement to be invalid or unenforceable, the parties agree that the court
making such determination will have the power to reduce the scope, duration, or
area of the provision, to delete specific words or phrases, or to replace the
provision with a provision that is valid and enforceable and that comes closest
to expressing the original intention of the parties, and this Agreement will be
enforceable as so modified.
10.11 CONFIDENTIAL INFORMATION.
(a) The Distributor and the Trust (in such capacity, the "RECEIVING PARTY")
acknowledge and agree to maintain the confidentiality of Confidential
Information (as hereinafter defined) provided by the Distributor and the Trust
(in such capacity, the "DISCLOSING PARTY") in connection with this Agreement.
The Receiving Party will not disclose or disseminate the Disclosing Party's
Confidential Information to any Person other than (a) those employees, agents,
contractors, subcontractors and licensees of the Receiving Party, or (b) with
respect to the Distributor as a Receiving Party, to those employees, agents,
contractors, subcontractors and licensees of any agent or affiliate, who have a
need to know it in order to assist the Receiving Party in performing its
obligations, or to permit the Receiving Party to exercise its rights under this
Agreement. In addition, the Receiving Party (a) will take all reasonable steps
to prevent unauthorized access to the Disclosing Party's Confidential
Information, and (b) will not use the Disclosing Party's Confidential
Information, or authorize other Persons to use the Disclosing Party's
Confidential Information, for any purposes other than in connection with
performing its obligations or exercising its rights hereunder. As used herein,
"reasonable steps" means steps that a party takes to protect its own, similarly
confidential or proprietary information of a similar nature, which steps will in
no event be less than a reasonable standard of care.
(b) The term "CONFIDENTIAL INFORMATION," as used herein, will mean all
business strategies, plans and procedures, proprietary information,
methodologies, data and trade secrets, and other confidential information and
materials (including, without limitation, any non-public personal information as
defined in Regulation S-P) of the Disclosing Party, its affiliates, their
respective clients or suppliers, or other Persons with whom they do business,
that may be obtained by the Receiving Party from any source or that may be
developed as a result of this Agreement.
(c) The provisions of this SECTION 10.12 respecting Confidential
Information will not apply to the extent, but only to the extent, that such
Confidential Information is: (a) already known to the Receiving Party free of
any restriction at the time it is obtained from the Disclosing Party, (b)
subsequently learned from an independent third party free of any restriction and
without breach of this Agreement; (c) or becomes publicly available through no
wrongful act of the Receiving Party or any third party; (d) independently
developed by or for the Receiving Party without reference to or use of any
Confidential Information of the Disclosing Party; or (e) required to be
disclosed pursuant to an applicable law, rule, regulation, government
requirement or court order, or the rules of any stock exchange (provided,
however, that the Receiving Party will advise the Disclosing Party of such
required disclosure promptly upon learning thereof in order to afford the
Disclosing Party a reasonable opportunity to contest, limit and/or assist the
Receiving Party in crafting such disclosure).
(d) The Receiving Party will advise its employees, agents, contractors,
subcontractors and licensees, and will require its agents and affiliates to
advise their employees, agents, contractors, subcontractors and licensees, of
the Receiving Party's obligations of confidentiality and non-use under this
SECTION 10.12, and will be responsible for ensuring compliance by its and its
affiliates'
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Receiving Party will require all persons that are provided access to the
Disclosing Party's Confidential Information, other than the Receiving Party's
accountants and legal counsel, to execute confidentiality or non-disclosure
agreements containing provisions substantially similar to those set forth in
this SECTION 10.12. The Receiving Party will promptly notify the Disclosing
Party in writing upon learning of any unauthorized disclosure or use of the
Disclosing Party's Confidential Information by such persons.
(e) Upon the Disclosing Party's written request following the termination
of this Agreement, the Receiving Party promptly will return to the Disclosing
Party, or destroy, all Confidential Information of the Disclosing Party provided
under or in connection with this Agreement, including all copies, portions and
summaries thereof. Notwithstanding the foregoing sentence, (a) the Receiving
Party may retain one copy of each item of the Disclosing Party's Confidential
Information for purposes of identifying and establishing its rights and
obligations under this Agreement, for archival or audit purposes and/or to the
extent required by applicable law, and (b) the Distributor will have no
obligation to return or destroy Confidential Information of the Trust that
resides in save tapes of Distributor; provided, however, that in either case all
such Confidential Information retained by the Receiving Party will remain
subject to the provisions of SECTION 10.12 for so long as it is so retained. If
requested by the Disclosing Party, the Receiving Party will certify in writing
its compliance with the provisions of this paragraph.
10.12 USE OF NAME.
(a) The Trust will not use the name of the Distributor, or any of its
affiliates, in any Prospectus, sales literature, and other material relating to
the Trust in any manner without the prior written consent of the Distributor
(which will not be unreasonably withheld); PROVIDED, HOWEVER, that the
Distributor hereby approves all lawful uses of the names of the Distributor and
its affiliates in the Prospectus of the Trust and in all other materials which
merely refer in accurate terms to their appointment hereunder or which are
required by applicable law, regulations or otherwise by the SEC, FINRA, or any
state securities authority.
(b) Neither the Distributor nor any of its affiliates will use the name of
the Trust in any publicly disseminated materials, including sales literature, in
any manner without the prior written consent of the Trust (which will not be
unreasonably withheld); PROVIDED, HOWEVER, that the Trust and each Fund hereby
approves all lawful uses of its name in any required regulatory filings of the
Distributor which merely refer in accurate terms to the appointment of the
Distributor hereunder, or which are required by applicable law, regulations or
otherwise by the SEC, FINRA, or any state securities authority.
10.13 INSURANCE. The Distributor agrees to maintain liability insurance
coverage which is, in scope and amount, consistent with coverage customary in
the industry for distribution activities similar to the distribution activities
provided to the Trust hereunder. The Distributor will notify the Trust upon
receipt of any notice of material, adverse change in the terms or provisions of
its insurance coverage that may materially and adversely affect the Trust's
rights hereunder. Such notification will include the date of change and the
reason or reasons therefore. The Distributor will notify the Trust of any
material claims against it, whether or not covered by insurance that may
materially and adversely affect the Trust's rights hereunder.
*****
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IN WITNESS WHEREOF, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
XXXXXXXX SERIES TRUST SEI INVESTMENTS DISTRIBUTION CO.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
----------------------- ------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxx
Title: Authorized Signatory Title: CFO & COO
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SCHEDULE A
LIST OF SERVICES
INDUSTRY AGREEMENT SERVICES
o Negotiate and execute sub-distribution agreements with broker/dealers
and/or banks on behalf of Funds
o Coordinate and execute operational agreements (networking agreements,
NSCC redemption agreements, etc.)
o Coordinate and execute 401(k) agreements and shareholder service
agreements with various record-holders and other financial
intermediaries
o Coordinate and execute service agreements with Supermarkets (e.g.
Schwab, Fidelity, etc.) and other financial intermediaries
FINRA REVIEW
o Review and approve all collateral fund marketing materials to ensure
compliance with SEC & FINRA advertising rules
o Conduct FINRA filing of materials
o Respond to FINRA comments on marketing materials
o Review and file Internet sites according to FINRA policies
o Provide client with copy of SEI's SEC & FINRA Marketing Materials
Guidebook
INVESTOR SERVICES
o Obtain toll free lines and call prompters for fund family
o Provide servicing team, consisting of FINRA-licensed representatives,
as well as Interactive Voice Response Support to handle investor
service calls
o Respond to shareholder questions regarding the fund family
o Respond to shareholder account inquiries
o Respond to shareholder questions regarding financial statements and
performance information
o Submit shareholder requests for literature (only if client chooses
fulfillment services)
o Provide standard management reports on statistics around inbound
shareholder calls
o Conduct routine Q/A testing on all shareholder services
representatives
o Coordinate set-up of toll free lines, call prompter services, and
consultation on best practices around call prompters
E-MAIL RESPONSE SUPPORT
o Receive inbound email into messaging database and generate
auto-response verifying receipt.
o Assess and categorize each inbound email request or question.
o Process appropriate e-mail responses to include both "canned" and
"free form" responses.
o Provide response team consisting of FINRA-licensed reps.
o Submit requests for literature (only if client chooses fulfillment
services and website template)
o Provide standard management reports on statistics around
demographics, response rates, and standards.
o Provide Q/A review of response, conducted by licensed Principal.
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