Exhibit 99.e.1
DISTRIBUTION AGREEMENT
AS RE-EXECUTED JANUARY 30,1998
THIS AGREEMENT is made as of this 15" day of February, 1997,
between HighMark Funds (the "Trust"), a Massachusetts business trust and SEI
Financial Services Company (the "Distributor"), a Pennsylvania corporation.
WHEREAS, the Trust is registered as an investment company with the
Securities and Exchange Commission (the "SEC") under the Investment Company
Act of 1940, as amended (the "1940 Act"), and its 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;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter contained, the Trust and Distributor hereby agree as follows:
ARTICLE 1. SALE OF SHARES. The Trust grants to the Distributor the
exclusive right to sell units (the "Shares") of the portfolios (the
"Portfolios") of the Trust at the net asset value per Share, plus any
applicable sales charges in accordance with the current 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").
ARTICLE 2. SOLICITATION OF SALES. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable
efforts, consistent with its other business, 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 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.
ARTICLE 3. AUTHORIZED REPRESENTATIONS. The Distributor is not
authorized by the Trust to give any information or to make any
representations other than those contained in the current registration
statements and prospectuses of the Trust filed with the SEC or contained in
Shareholder reports or other material that may be prepared by or on behalf of
the Trust for the Distributor's use: 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.
ARTICLE 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 may reasonably be expected to sell and to pay all fees
associated with said registration. The Trust shall make available to the
Distributor
such number of copies of its currently effective prospectus and
statement of additional information as the Distributor may
reasonably request. The Trust shall furnish to the Distributor
copies of all information, financial statements and other papers
which the Distributor may reasonably request for use in connection
with the distribution of Shares of the Trust.
ARTICLE 5. COMPENSATION. As compensation for providing the services
under this Agreement:
(a) The Distributor shall receive from the Trust:
(1) all distribution and service fees, as applicable, at
the rate and under the terms and conditions set forth in
each Distribution and Shareholder Services Plan adopted by
the appropriate class of shares of each of the Portfolios,
as such Plans maybe amended from time to time, and subject
to any further limitations on such fees as the Board of
Trustees of the Trust may impose;
(2) all contingent deferred sales charges ("CDSCs") applied
on redemptions of CDSC Class Shares of each Portfolio on
the terms and subject to such waivers as are described in
the Trust's Registration Statement and current
prospectuses, as amended from time to time, or as
otherwise required pursuant to applicable law; and
(3) all front-end sales charges; if any, on purchases of
Retail Shares of each Portfolio sold subject to such
charges as described in the Trust's Registration Statement
and current prospectuses, 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 such
Retail Shares, remit the net asset value thereof to the
Trust upon receipt of the proceeds and retain the
applicable sales charge.
(b) The Distributor may reallow any or all of the distribution or
service fees, contingent deferred sales charges and front end sales
charges which 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:
ARTICLE 6. 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; claim, damages, or expense and
reasonable counsel fees and disbursements incurred in connection therewith),
arising by reason of any person acquiring any Shares, based upon the ground
that the registration statement, prospectus, 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 riot 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.
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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
the performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Trust to be
liable to the Distributor under the indemnity agreement contained in this
paragraph 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 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 paragraph.
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:
ARTICLE 7. INDEMNIFICATION OF TRUST. The Distributor covenants and
agrees that it will indemnify and hold harmless the Trust and each of its
Trustees and officers and each person, if any, who controls the Trust within
the meaning of Section 15 of the Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense and reasonable counsel
fees incurred in connection therewith) based upon the 1933 Act or any other
statute or common law and arising by reason of any person acquiring any
Shares, and alleging a wrongful act of the Distributor or any of its
employees or alleging that the registration statement, prospectus,
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 the statement 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 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, bad faith
or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement, or
(ii) is the Distributor to be liable under its indemnity agreement contained
in this paragraph with respect to any claim made against the
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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 of its indemnity agreement contained in
this paragraph.
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 riot 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 Trusts' Shares.
ARTICLE 8. EFFECTIVE DATE. This Agreement shall be effective upon
its execution, and unless terminated as provided, shall continue in force
through July 1, 1997 and thereafter from year to year, provided that such
annual continuance is approved by (i) either 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 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 shall automatically terminate in the event. of
its assignment. As used in this paragraph the terms "vote. of a majority of
the outstanding voting securities", "assignment" and "interested person"
shall have the respective meanings specified in the 1940 Act. In addition,
this Agreement may at any time be terminated without penalty by SFS, by a
vote of a majority of Qualified Trustees or by vote of a majority of the
outstanding voting securities of the Trust upon not less than sixty days
prior written notice to the other party.
ARTICLE 9. NOTICES. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party
giving notice: if to the Trust, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇,
and if to the Distributor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇.
ARTICLE 10. LIMITATION OF LIABILITY. A copy of the Declaration of
Trust of the Trust is on file with 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.
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ARTICLE 11. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts and the
applicable provisions of the 1940 Act. To the extent that the applicable laws
of the Commonwealth of Massachusetts, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
ARTICLE 12. 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, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
HIGHMARK FUNDS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Attest: /s/ ▇▇▇▇▇ Oeschlin Title: Vice President
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SEI FINANCIAL SERVICES COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇
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Attest: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President
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