DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this __ day of _____________, 2007 between
Accessor Funds, Inc. (the "Fund"), a Maryland corporation, and SEI Investments
Distribution Co. (the "Distributor"), a Pennsylvania ----------- corporation.
WHEREAS, the Fund 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, intending to be legally bound, the Fund and Distributor hereby agree
as follows:
ARTICLE 1. Sale of Shares; Services. The Fund hereby appoints the Distributor as
its agent and the Distributor accepts such appointment to sell units (the
"Shares") of the portfolios (the "Portfolios") of the Fund 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 Fund, 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 National Association of Securities
Dealers ("NASD") and the laws governing the sale of securities in the various
states ("Blue Sky Laws"). Notwithstanding the foregoing, (i) the Fund reserves
the right to issue or sell Shares of any Portfolio directly to the public at any
time and (ii) the Fund may terminate, suspend or withdraw the offering of Shares
of any Portfolio whenever, in its sole discretion, it deems such action to be
desirable. Without limiting the foregoing, the Distributor shall perform or
supervise the performance by others of the distribution and marketing services
set forth in Schedule A, attached hereto and incorporated herein.
ARTICLE 2. Solicitation of Sales. In consideration of these rights granted to
the Distributor, the Distributor agrees to use all reasonable efforts in
connection with the distribution of Shares of the Fund; 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 or obligate the
Distributor to sell any particular number of Shares. Throughout the term of this
Agreement, the Distributor shall maintain such licenses and registrations as are
necessary to permit it and its representatives and agents to provide the
services hereunder.
ARTICLE 3. Authorized Representations. The Distributor is not authorized by the
Fund to give any information or to make any representations other than those
contained in the current registration statements and prospectuses of the Fund
filed with the SEC or contained in Shareholder reports or other material that
may be prepared by or on behalf of the Fund 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
prepared in accordance with applicable rules and regulations; and provided
further, that the Fund has previously approved such material.
ARTICLE 4. Registration of Shares. The Fund 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 Fund 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 Fund 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 Fund. The Distributor shall not offer any Shares
for sale under this Agreement following receipt of written notice from the Fund
that (i) the Fund's registration statement as to such Shares or any necessary
amendments thereto has been suspended under any of the provisions of the 1933
Act, or (ii) there is no current prospectus for such Shares on file with the
SEC. In the event the Distributor ceases to offer Shares for sale hereunder as a
result of the foregoing sentence, the Distributor shall not resume offering any
Shares for sale hereunder unless and until the Fund remedies such deficiency and
provides written evidence of the same to the Distributor.
ARTICLE 5. Compensation. As compensation for providing the services under this
Agreement:
(a) The Distributor shall receive from the Fund:
(1) all distribution and service fees, as applicable, at the rate and
under the terms and conditions set forth in each distribution 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 directors of the Fund may impose;
(2) all front-end sales charges, if any, on purchases of Shares of
each Portfolio sold subject to such charges as described in the Fund'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 Shares, remit the net
asset value thereof to the Fund upon receipt of the proceeds and
retain the applicable sales charge; and
(3) all contingent deferred sales charges applied on redemptions of
Shares subject to such charges on the terms and subject to such
waivers as are described in the Fund's Registration Statement and
current prospectuses, as amended from time to time, or as otherwise
required pursuant to applicable law.
(b) The 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 Fund to such brokers, dealers and other financial
institutions and intermediaries as the Distributor may from time to time
determine.
(c) Unless otherwise agreed to by the parties in writing, the 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 Fund, and (c) the Blue Sky registration and qualification of Shares for
sale in the various states in which the officers of the Fund shall
determine it advisable to qualify such Shares for sale.
ARTICLE 6. Indemnification of Distributor. The Fund agrees to indemnify and hold
harmless the Distributor and each of its directors, employees, affiliates 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), based upon the ground
that the registration statement, prospectus, Shareholder reports or other
information made available to Distributor or filed or made public by the Fund
(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 Fund does not agree to
indemnify the Distributor or hold it harmless to the extent that the statements
or omission was made in reliance upon, and in conformity with, information
furnished to the Fund by or on behalf of the Distributor.
In no case is the indemnity of the Fund to be deemed to protect the Distributor
against any liability to the Fund 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.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation or action with respect to which indemnification hereunder may
ultimately be merited. If in any case Trust is asked to indemnify or hold the
Distributor harmless, the Distributor shall promptly advise the Fund of the
pertinent facts concerning the situation in question, and the Distributor will
use all reasonable care to identify and notify the Fund promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification, but failure to do so shall not affect the rights
hereunder.
The Fund shall be entitled to participate at its own expense or, if it so
elects, to assume the defense of any suit brought to enforce any claims subject
to this indemnity provision. If the Fund elects to assume the defense of any
such claim, the defense shall be conducted by counsel chosen by the Fund and
satisfactory to the Distributor, whose approval shall not be unreasonably
withheld. In the event that the Fund elects to assume the defense of any suit
and retain counsel, the Distributor shall bear the fees and expenses of any
additional counsel retained by it. If the Fund does not elect to assume the
defense of a suit, it will reimburse the Distributor for the fees and expenses
of any counsel retained by the Distributor.
The provisions of this Article 6 shall survive the termination of this
Agreement.
ARTICLE 7. Indemnification of the Fund. The Distributor covenants and agrees
that it will indemnify and hold harmless the Fund and each of its directors and
officers and each person, if any, who controls the Fund 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) arising by reason of any person acquiring any Shares,
based upon the ground that the registration statement, prospectus, Shareholder
reports or other information made available to Distributor or filed or made
public by the Fund (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 to the extent that
the statements or omission was made in reliance upon, and in conformity with,
information furnished to the Fund by or on behalf of the Distributor.
In no case is the indemnity of the Distributor in favor of the Fund or any other
person indemnified to be deemed to protect the Fund or any other person against
any liability to which the Fund 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.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation or action with respect to which indemnification hereunder may
ultimately be merited. If in any case the Distributor is asked to indemnify or
hold the Fund harmless, the Fund shall promptly advise the Distributor of the
pertinent facts concerning the situation in question, and the Fund will use all
reasonable care to identify and notify the Distributor promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification, but failure to do so shall not affect the rights
hereunder.
The Distributor shall be entitled to participate at its own expense or, if it so
elects, to assume the defense of any suit brought to enforce any claims subject
to this indemnity provision. If the Distributor elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by the
Distributor and satisfactory to the Fund, 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 Fund shall bear the fees and
expenses of any additional counsel retained by it. If the Distributor does not
elect to assume the defense of a suit, it will reimburse the Fund for the fees
and expenses of any counsel retained by the Fund.
The provisions of this Article 7 shall survive the termination of this
Agreement.
ARTICLE 8. Consequential Damages. In no event and under no circumstances shall
either party to this Agreement be liable to anyone, including, without
limitation, the other party, for consequential, special or indirect damages
(including, without limitation, lost profits, diminution in business reputation)
for any act or failure to act under any provision of this Agreement.
ARTICLE 9. Effective Date. This Agreement shall be effective upon its execution,
and, unless terminated as provided, shall continue in force for two year(s) from
the effective date and thereafter from year to year, provided that such annual
continuance is approved by (i) either the vote of a majority of the Fundees of
the Fund, or the vote of a majority of the outstanding voting securities of the
Fund, and (ii) the vote of a majority of those directors of the Fund who are not
parties to this Agreement or the Fund'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 the Distributor, by a vote of a majority of Qualified Trustees or by vote of
a majority of the outstanding voting securities of the Fund upon not less than
sixty 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, or at such other address of such
party specified in the opening paragraph of this Agreement. Notices to the
Distributor shall be sent to the attention of: General Counsel, SEI Investments
Distribution Company, Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000.
Notices to the Fund shall be sent to Chief Compliance Officer, Accessor Funds,
0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
ARTICLE 11. 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 12. Entire Agreement; Amendments. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior or contemporaneous representations, discussions,
negotiations, letters, proposals, agreements and understandings between the
parties hereto with respect to the subject matter hereof, whether written or
oral. This Agreement may be amended, modified or supplemented only by a written
instrument duly executed by an authorized representative of each of the parties.
ARTICLE 13. 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 1940 Act, the latter shall control.
ARTICLE 14. Headings. All Article headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and will not
affect in any way the meaning or interpretation of this Agreement.
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 or facsimile 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.
ARTICLE 18. Confidential Information.
(a) The Distributor and the Fund (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
Fund (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 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) 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.
(b) 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.
(c) 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).
(d) 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.
(e) 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) the Distributor shall have no obligation to return
or destroy Confidential Information of Fund 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 18for 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.
ARTICLE 19. Use of Name.
(a) The Fund shall not use the name of the Distributor, or any of its
affiliates, in any prospectus or statement of additional information, sales
literature, and other material relating to the Fund in any manner without
the prior written consent of the Distributor (which shall 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 and statement of additional information of the Fund and
in all other materials which merely refer in accurate terms to their
appointment hereunder or which are required by the SEC, NASD, or any state
securities authority.
(b) Neither the Distributor nor any of its affiliates shall use the name of
the Fund in any publicly disseminated materials, including sales
literature, in any manner without the prior written consent of the Fund
(which shall not be unreasonably withheld); provided, however, that the
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 the SEC,
NASD, or any state securities authority.
ARTICLE 20. 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 Fund hereunder. The Distributor shall notify the Fund 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 Fund's
rights hereunder. Such notification shall include the date of change and the
reason or reasons therefore. The Distributor shall notify the Fund of any
material claims against it, whether or not covered by insurance that may
materially and adversely affect the Fund's rights hereunder.
IN WITNESS WHEREOF, the Fund and Distributor have each duly executed this
Agreement, as of the day and year above written.
ACCESSOR FUNDS, INC. SEI INVESTMENTS DISTRIBUTION CO.
By: ________________________ By: __________________________
Name: Name:
Title: Title:
SCHEDULE A
o Review all collateral fund marketing materials provided to the Distributor
by or on behalf of the Fund for compliance with SEC & NASD advertising
rules
o Conduct NASD filing of materials
o Respond to NASD comments on marketing materials
o Review and file Internet sites according to NASD policies
o Provide the Fund with copy of the Distributor's SEC & NASD Marketing
Materials Guidebook
o Coordinate sub-distribution agreements with broker/dealers on behalf of the
Fund o Coordinate operational agreements (e.g. networking agreements, NSCC
redemption agreements)
o Coordinate 401(k) agreements and shareholder service agreements with
various record-holders
Additional items requested by client:
o Prepare and deliver reports to the Accessor directors on a regular basis,
at least quarterly, showing the expenditures pursuant to each distribution
plan and the purposes therefor, as well as any supplemental reports that
the directors may reasonably request.
o Pay a commission to certain service organizations in accordance with the
prospectus and statement of additional information.
