DISTRIBUTION AGREEMENT
THIS
DISTRIBUTION AGREEMENT (this “Agreement”) is made
as of this 30th day of May, 2008 (the “Effective Date”)
between Wilshire Variable Insurance Trust. (the “Trust”), a Delaware
statutory trust, and SEI Investments Distribution Co. (“Distributor”), a
Pennsylvania corporation.
WHEREAS,
the Trust is registered as an open-end management investment company with the
SEC under the Investment Company Act of 1940, as amended (the “1940 Act”);
and
WHEREAS,
the Trust is offering units of beneficial interest (hereinafter, “Shares”) of each
portfolio (each, a “Portfolio” and
collectively, the “Portfolios”) of the
Trust set forth in Schedule A
(Portfolios) of this Agreement; and
WHEREAS,
the Trust desires to retain Distributor to serve as Distributor of the Shares on
behalf of the Portfolios and Distributor desires to provide such
services.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter contained,
intending to be legally bound, the Trust and Distributor hereby agree as
follows:
ARTICLE
1. Definitions.
1.1
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“1933 Act” shall
mean the Securities Act of 1933, as
amended.
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1.2
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“1934 Act” shall
mean the Securities Exchange Act of 1934, as
amended.
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1.3
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“1940 Act” shall
have the meaning given such term in the preamble of this
Agreement.
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1.4
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“AML Program”
shall have the meaning given such term in Section 5.1(d) of this
Agreement.
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1.5
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“Agreement”
shall have the meaning given such term in the preamble of this
Agreement.
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1.6
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“Blue Sky Laws”
means the state laws and regulations governing the sale of securities in
the various states.
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1.7
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“CDSC” shall
have the meaning given such term in Section 6.1 of
this Agreement.
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1.8
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“Confidential
Information” shall have the meaning given such term in Section 18.2
of this Agreement.
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1.9
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“Disclosing
Party” shall have the meaning given such term in Section 18.1 of
this Agreement.
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1.10
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“Distribution
Plan” shall have the meaning given such term in Section 6.1 of this
Agreement.
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1.11
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“Distributor”
shall have the meaning given such term in the preamble of this
Agreement.
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1.12
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“Effective Date”
shall have the meaning given such term in the preamble of this
Agreement.
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1.13
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“FINRA” shall
have the meaning given such term in Section 5.1(d) of this
Agreement.
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1.14
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“FinCEN” shall
have the meaning given such term in Section 5.1(d) of this
Agreement.
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1.15
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“OFAC” shall
have the meaning given such term in Section 5.1(d) of this
Agreement.
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1.16
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“Portfolio”
shall have the meaning given such term in the preamble of this
Agreement.
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1
1.17
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“Prospectus”
means any prospectus, registration statement, statement of additional
information, proxy solicitation and tender offer materials, annual or
other periodic report of the Trust or any Portfolio of the Trust or any
advertising, marketing, shareholder communication, or promotional material
generated by the Trust or its investment adviser from time to time, as
appropriate, including all amendments or supplements
thereto.
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1.18
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“Qualified
Trustees” shall have the meaning given such term in Article 10 of
this Agreement.
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1.19
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“Receiving
Party” shall have the meaning given such term in Section 18.1 of
this Agreement.
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1.20
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“Services” shall
have the meaning given such term in Article 2 of
this Agreement.
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1.21
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“SEC” shall mean
the Securities and Exchange Commission or any replacement regulatory body
having a substantially similar
function.
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1.22
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“Securities
Laws” shall mean the 1933 Act, the 1934 Act, the 1940 Act and
applicable Blue Sky Laws, together with any replacement legislation and
all rules and regulations promulgated pursuant to any such
legislation.
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1.23
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“Shares” shall
have the meaning given such term in the preamble of this
Agreement.
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1.24
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“Trust” shall
have the meaning given such term in the preamble of this
Agreement.
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ARTICLE
2. Sale of Shares;
Services. The Trust grants to Distributor the right to sell
the Shares of the Portfolios at the net asset value per share, plus any
applicable sales charges or 12b-1 distribution or shareholder servicing fees 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 applicable Securities Laws. Without limiting the foregoing,
Distributor shall perform or supervise the performance by others of the
distribution and marketing services (hereinafter, the “Services”) set forth
in Schedule B (List of
Services).
ARTICLE
3. Solicitation of Sales;
Non-Exclusive. In consideration of these rights granted to
Distributor, Distributor agrees to use reasonable efforts in connection with the
distribution of Shares of the Trust; provided, however, that
Distributor shall not be prevented from entering into like arrangements with
other issuers. The provisions of this paragraph do not obligate
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 or
obligate Distributor to sell any particular number of Shares.
ARTICLE
4. Authorized
Representations. Distributor is not authorized by the Trust to
give any information or to make any representations other than those contained
in the Prospectus 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
Distributor’s use. Distributor may prepare and distribute sales literature and
other material as it may deem appropriate, provided that such literature and
materials have been (i) prepared in accordance with applicable rules and
regulations (ii) and approved, in advance and in writing, by the Trust prior to
distribution.
ARTICLE
5. Representations, Warranties
and Covenants.
5.1
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Representations and
Warranties of the Trust. The Trust hereby represents and
warrants as follows:
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(a)
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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;
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2
(b)
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it
is not a party to any, and there are no, 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 or its properties or assets which could,
individually or in the aggregate, have a material effect upon its business
or financial condition. There is no injunction, order,
judgment, decree, or regulatory restriction imposed specifically upon it
or any of its properties or assets;
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(c)
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it
is an investment company that is duly registered under all applicable
Securities Laws;
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(d)
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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 and has an anti-money laundering program (“AML Program”),
that at minimum 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;
and
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(e)
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each
Prospectus has been prepared in accordance with all applicable Securities
Laws 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.
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5.2
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Covenants of the
Trust. The Trust hereby covenants as
follows:
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(a)
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each
Portfolio is a series of the Trust and it has duly authorized the issuance
of an unlimited number of shares with respect to each
Portfolio;
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(b)
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it
will take all action necessary to register Shares under the Securities
Laws so that there will be available for sale the number of Shares
Distributor may reasonably be expected to sell and it shall pay all fees
associated with said registration;
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(c)
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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;
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(d)
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no
Prospectus includes an untrue statement of a material fact or omits to
state a material fact that is required to be stated therein so as to make
the statements contained in such Prospectus not
misleading;
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(e)
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it
shall make available to Distributor such number of copies of each
Prospectus and all such other information, financial statements and other
papers, including, without limitation any copies of distribution plans
and/or shareholder services plans applicable to the appropriate class of
Shares of each Portfolio, which Distributor may reasonably request for use
in connection with the Services;
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(f)
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it
shall fully cooperate with requests from government regulators and
Distributor for information relating to customers and/or transactions
involving the Shares, as permitted by law, in order for Distributor to
comply with its regulatory obligations;
and
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(g)
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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
Distributor of such fact in advance and in writing prior to the date on
which the Trust desires to cease offering the
Shares.
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5.3
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Representations,
Warranties and Covenants of Distributor. Distributor
hereby represents, warrants and covenants as
follows:
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(a)
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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;
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(b)
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it
is not a party to any, and there are no, 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. There is no injunction, order,
judgment, decree, or regulatory restriction imposed specifically upon it
or any of its properties or assets;
and
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(c)
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it
is registered as a broker-dealer with the SEC under the 1934 Act and a
member of the Financial Industry Regulatory Authority
(“FINRA”).
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ARTICLE
6. Compensation.
6.1
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As
compensation for providing the Services under this Agreement, Distributor
shall receive from the Trust:
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(a)
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all
distribution and service fees, as applicable, at the rate and under the
terms and conditions set forth in each Portfolio’s distribution plan
established pursuant to Rule 12b-1 under the 1940 Act (each, a “Distribution
Plan”) and/or shareholder services plan applicable to the
appropriate class of Shares of each Portfolio, 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;
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(b)
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all
front-end sales charges, if any, on purchases of 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. Distributor, or brokers, dealers and other financial
institutions and intermediaries that have entered into sub-distribution
agreements with Distributor, may collect the gross proceeds derived from
the sale of such Shares, remit the net asset value thereof to the Trust
upon receipt of the proceeds and retain the applicable sales charge;
and
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(c)
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all
contingent deferred sales charges (“CDSC”) applied
on redemptions of Shares subject to such charges 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.
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6.2
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Distributor
may re-allow any or all of the distribution or service fees, front-end
sales charges and contingent deferred sales charges which it is paid by
the Trust to such brokers, dealers and other financial institutions and
intermediaries as Distributor may from time to time
determine.
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6.3
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Unless
otherwise agreed to by the parties in writing, Distributor shall not be
responsible for fees and expenses in connection with (a) filing of any
registration statement, printing and the distribution of any
prospectus(es) and statement(s) of additional information under the 1933
Act and/or the 1940 Act and amendments prepared for use in connection with
the offering of Shares for sale to the public, preparing, setting in type,
printing and mailing the prospectus(es), statement(s) of additional
information and any supplements thereto sent to existing shareholders, (b)
preparing, setting in type, printing and mailing any report (including
annual and semi-annual reports) or other communication to shareholders of
the Portfolios, and (c) any such registration and qualification of Shares
for sale in the various states pursuant to applicable Blue Sky Laws in
which the officers of the Trust shall determine it advisable to qualify
such Shares for sale.
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ARTICLE
7. Indemnification of
Distributor. The Trust agrees to indemnify and hold harmless
Distributor and each of its trustees and officers and each person, if any, who
controls 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 a Prospectus 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 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 Distributor or hold it harmless to the extent that the statement or
omission was made in reliance upon, and in conformity with, information
furnished to the Trust by or on behalf of Distributor.
In no
case (i) is the indemnity of the Trust to be deemed to protect Distributor
against any liability to the Trust or its shareholders to which 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 Distributor under the indemnity agreement contained
in this paragraph with respect to any claim made against Distributor or any
person indemnified unless 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 Distributor or such other person (or after
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 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 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
8. Indemnification of
Trust. 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
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 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 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 Distributor.
5
In no
case (i) is the indemnity of 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 Distributor to be liable
under its indemnity agreement contained in this paragraph 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 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 Distributor of any claim shall not
relieve 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.
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 Distributor elects to assume the defense, the defense shall be conducted by
counsel chosen by Distributor and satisfactory to the indemnified defendants
whose approval shall not be unreasonably withheld. In the event that
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 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.
Distributor
agrees to notify the Trust promptly of the commencement of any litigation or
proceedings against it or any of its officers in connection with the issue and
sale of any of the Trust’s Shares.
ARTICLE
9. Term. This
Agreement shall be effective with respect to each Portfolio identified on
Schedule A hereto as of the Effective Date and with respect to any Portfolio
added to Schedule A hereto as of the date Schedule A is amended to add such
Portfolios, and, unless terminated as provided, shall continue in force through
March 31, 2010 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 Distributor upon not less than seventy-five days prior
written notice to the Trust. This Agreement may at anytime be
terminated with respect to any Portfolio, by a vote of a majority of Qualified
Trustees or by vote of a majority of the outstanding voting securities of such
Portfolios upon not less than seventy-five days prior written notice to the
other party.
ARTICLE
10. Notices. All
notices provided for or permitted under this Agreement shall be deemed effective
upon receipt, and shall 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 Distributor shall be sent to the attention of:
General Counsel, SEI Investments Distribution Co., 0 Xxxxxxx Xxxxxx Xxxxx, Xxxx,
Xxxxxxxxxxxx 00000. Notices to the Trust including with respect to
any Portfolio thereof) shall be sent to Wilshire Variable Insurance Trust, 0000
Xxxxx Xxxxxx Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention;
Xxxxxxxx X. Xxxxxxx, President.
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ARTICLE
11. Limitation of
Liability. Except to the extent arising out of Distributor’s
fraud, willful misconduct, bad faith, gross negligence or as
otherwise prohibited by applicable Securities Laws, Distributor shall not be
responsible for any breach in the performance of its obligations under this
Agreement, including, without limitation, any breach arising out of (i) the
failure or delay of the Trust or its agents to perform its obligations under
this Agreement, or (ii) Distributor’s reliance on information contained in a
Prospectus except to the extent such information was provided by the
Distributor. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL DISTRIBUTOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER NON-DIRECT DAMAGES OF ANY KIND
WHETHER SUCH LIABILITY IS PREDICATED ON CONTRACT, STRICT LIABILITY, OR ANY OTHER
THEORY AND REGARDLESS OF WHETHER THE TRUST IS ADVISED OF THE POSSIBILITY OF ANY
SUCH DAMAGES.
ARTICLE
12. Dispute
Resolution. Whenever either party desires to institute legal
proceedings against the other concerning this Agreement, it shall provide
written notice to that effect to such other party. The party
providing such notice shall refrain from instituting said legal proceedings for
a period of thirty days following the date of provision of such
notice. During such period, the parties shall attempt in good faith
to amicably resolve their dispute by negotiation among their executive
officers.
ARTICLE
13. Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties with respect to the Services 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 changed or waived
only by an instrument in writing signed by the party against which enforcement
of such change or waiver is sought. For purposes of clarification,
the execution of this Agreement shall not amend, supersede or have any other
effect on that certain Marketing, Distribution and Wholesaling Support
Agreement, dated September 24, 2007, between Wilshire Associates Incorporated
and Distributor.
ARTICLE
14. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania 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 Commonwealth
of Pennsylvania, or any of the provisions of this Agreement, conflict with the
applicable provisions of the Securities Laws, the latter shall
control.
ARTICLE
15. Counterparts. This
Agreement may be executed in two or more counterparts, all of which shall
constitute one and the same instrument. Each such counterpart shall
be deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such
counterpart. This Agreement shall be deemed executed by both parties
when any one or more counterparts hereof or thereof, individually or taken
together, bears the original facsimile or scanned signatures of each of the
parties.
ARTICLE
16. 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. Either party desiring
to rely upon any of the foregoing as an excuse for default or breach 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.
ARTICLE 17. Severability. Any
provision of this Agreement that is determined to be invalid or unenforceable in
any jurisdiction shall 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 shall 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 shall be enforceable as so modified.
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ARTICLE
18. Confidential
Information.
18.1
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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 Distributor
and the Trust (in such capacity, the “Disclosing
Party”) in connection with this Agreement. The Receiving
Party shall 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 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) shall take all reasonable steps to prevent
unauthorized access to the Disclosing Party’s Confidential Information,
and (b) shall 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 shall in no event be less than a reasonable standard of
care.
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18.2
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The
term “Confidential
Information,” as used herein, shall 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.
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18.3
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The
provisions of this Article 18
respecting Confidential Information shall not apply to the extent, but
only to the extent, that such Confidential Information: (a) is already
known to the Receiving Party free of any restriction at the time it is
obtained from the Disclosing Party, (b) is subsequently learned from an
independent third party free of any restriction and without breach of this
Agreement; (c) is or becomes publicly available through no wrongful act of
the Receiving Party or any third party; (d) is independently developed by
or for the Receiving Party without reference to or use of any Confidential
Information of the Disclosing Party; or (e) is 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 shall 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).
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18.4
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The
Receiving Party shall advise its employees, agents, contractors,
subcontractors and licensees, and shall 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 Article 18, and
shall be responsible for ensuring compliance by its and its affiliates’
employees, agents, contractors, subcontractors and licensees with such
obligations. In addition, the Receiving Party shall 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
Article
18. The Receiving Party shall 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.
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8
18.5
|
Upon
the Disclosing Party’s written request following the termination of this
Agreement, the Receiving Party promptly shall 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) Distributor shall 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 shall remain subject to the
provisions of Article 18 for
so long as it is so retained. If requested by the Disclosing
Party, the Receiving Party shall certify in writing its compliance with
the provisions of this paragraph.
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ARTICLE
19. Use of
Name.
19.1
|
The
Trust shall not use the name of Distributor, or any of its affiliates, in
any prospectus or statement of additional information, sales literature,
and other material relating to the Trust in any manner without the prior
written consent of Distributor (which shall not be unreasonably withheld);
provided,
however,
that Distributor hereby approves all lawful uses of the names of
Distributor and its affiliates in the prospectus and statement of
additional information 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.
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19.2
|
Neither
Distributor nor any of its affiliates shall 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 shall not be
unreasonably withheld); provided, however, that
the Trust hereby approves all lawful uses of its name in any required
regulatory filings of Distributor which merely refer in accurate terms to
the appointment of Distributor hereunder, or which are required by
applicable law, regulations or otherwise by the SEC, FINRA, or
any state securities authority.
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ARTICLE
20. Insurance. 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. Distributor shall 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 shall include the date of change and the
reason or reasons therefore. Distributor shall 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.
ARTICLE
21. Anti-Money
Laundering Laws. In connection with performing the services set forth
herein, the Distributor may receive certain information from FinCEN or other
regulatory entities and provide such information to the Trust, the Trust’s
transfer agent or one or more of the Trust’s other service providers in
connection with the Trust’s compliance with applicable laws, policies and
regulations aimed at the prevention and detection of money laundering and/or
terrorism activities (hereinafter, the “Regulations”). The
Trust and the Distributor agree that the Trust shall be responsible for its
compliance with all such Regulations. The Trust acknowledges that the
Distributor, transfer agent or another of the Trust’s services providers are
authorized to return an investor’s investment in any Portfolio and take any
action necessary to restrict repayment of redemption proceeds to the extent
necessary to comply Regulations.
[Signature
page follows]
9
IN WITNESS WHEREOF, the
parties have each duly executed this Agreement, as of the day and year above
written.
By:
______________________________
Name:
Title:
|
SEI
INVESTMENTS DISTRIBUTION CO.
By: ______________________________
Name:
Title:
|
10
SCHEDULE
A
Wilshire
Variable Insurance Trust Portfolios
Effective: July 12,
2008
Equity
Fund
Balanced
Fund
Income
Fund
Short-Term
Investment Fund
Small Cap
Growth Fund
International
Equity Fund
Socially
Responsible Fund
2010
Aggressive Fund
2010
Moderate Fund
2010
Conservative Fund
2015
Moderate Fund
2025
Moderate Fund
2035
Moderate Fund
2045
Moderate Fund
Effective: August 4,
2008
Balanced
Income ETF Portfolio
Balanced
ETF Portfolio
Balanced
Growth ETF Portfolio
11
SCHEDULE
B
List
of Services
General
Legal Consulting
Negotiate
and execute sub-distribution agreements with broker/dealers on behalf of
Portfolios
Coordinate
and execute operational agreements (networking agreements, NSCC redemption
agreements, etc.)
Coordinate
and execute 401(k) agreements and shareholder service agreements with various
record-holders and other financial intermediaries
Coordinate
and execute service agreements with Supermarkets (e.g. Schwab, Fidelity, Xxxx
Xxxxx, etc.) and other financial intermediaries
General
Business Consulting
Recommend
opportunities for asset gathering or asset growth
Identify
best practices and suggest methods for improving internal
efficiencies
Conduct
general business planning
NASD
Review
Review
and approve all collateral fund marketing materials to ensure compliance with
SEC & NASD advertising rules
Conduct
NASD filing of materials
Respond
to NASD comments on marketing materials
Review
and file Internet sites according to NASD policies
Provide
client with copy of SEI’s SEC & NASD Marketing Materials
Guidebook
Investor
Services
Obtain
toll free lines and call prompters for fund family
Provide
servicing team, consisting of NASD-licensed representatives, as well as
Interactive Voice Response Support to handle investor service calls
Respond
to shareholder questions regarding the fund family
Respond
to shareholder account inquiries
Respond
to shareholder questions regarding financial statements and performance
information
Submit
shareholder requests for literature (only if client chooses fulfillment
services)
Provide
standard management reports on statistics around inbound shareholder
calls
Conduct
routine Q/A testing on all shareholder services representatives
Coordinate
set-up of toll free lines, call prompter services, and consultation on best
practices around call prompters
E-Mail
Response Support
Receive
inbound email into messaging database and generate auto-response
verifying receipt.
Assess
and categorize each inbound email request or question.
Process
appropriate e-mail responses to include both “canned” and “free form”
responses.
Provide
response team consisting of NASD-licensed reps.
Submit
requests for literature (only if client chooses fulfillment services and website
template)
Provide
standard management reports on statistics around demographics, response rates,
and standards.
Provide
Q/A review of response, conducted by licensed Principal.
12
Fulfillment
Services (by R.R. Xxxxxxxx)
Coordinate
reduced-rate pricing with preferred provider
Oversee
fulfillment vendor and coordinate for best practices
Assign
inventory codes and conduct inventory management
Review
and approve bills
Provide
“best practices” advice for minimizing fulfillment costs
13