DISTRIBUTION AGREEMENT
FOR TIAA-CREF MUTUAL FUNDS
--------------------------
THIS AGREEMENT is made this 1st day of July, 1997, by and between
TIAA-CREF Mutual Funds (the "Fund"), a Delaware business trust, and Teachers
Personal Investor Services, Inc. ("TPIS"), a Delaware corporation.
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and currently consists of six series (known as the Growth & Income Fund, Money
Market Fund, International Equity Fund, Bond Plus Fund, Growth Equity Fund, and
Managed Allocation Fund), and may consist of additional series in the future
(collectively, the "Funds");
WHEREAS, TPIS is engaged principally in the business of distributing
variable insurance products and investment company shares, and is registered as
a broker-dealer under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and is a member of the National Association of Securities Dealers, Inc.
("NASD");
WHEREAS, the Fund has registered its shares of beneficial interest (the
"Shares") under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Fund desires to retain TPIS to distribute the Shares and TPIS
is willing to distribute the Shares in the manner and on the terms set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Fund and TPIS hereby agree as follows:
1. Distribution of the Shares.
(a) Right to Sell Shares. The Fund hereby grants to TPIS the
right, subject to the requirements of the 1933 Act, the 1934 Act, and the 1940
Act, and the terms set forth herein, to distribute the Shares during the term of
this Agreement. The rights granted to TPIS shall be nonexclusive in that the
Fund reserves the right to sell its Shares to investors pursuant to applications
received and accepted by the Fund or its transfer agent. Further, the Fund
reserves the right to issue Shares in connection with the merger or
consolidation of any other investment company, trust or personal holding company
with the Fund or the Fund's acquisition by the purchase or otherwise, of all or
substantially all of the assets of an investment company, trust or personal
holding company. Any right granted to TPIS to accept orders for Shares, or to
make sales on behalf of the Fund or to purchase Shares for resale, will not
apply to Shares issued in connection with the merger or consolidation of any
other investment company with the Fund or its acquisition by purchase or
otherwise, of all or substantially all of the assets of any investment company,
trust or personal holding company, or substantially all of the outstanding
shares or interests of any such entity, and such right shall not apply to Shares
that may be offered by the Fund to shareholders by virtue of their being
shareholders of the Fund.
TPIS is hereby authorized to enter into written sales or service
agreements, on such terms and conditions as TPIS may determine are not
inconsistent with this Agreement, with broker-dealers that are registered as
such under the 1934 Act and are members of the NASD and agree to participate in
the distribution of the Shares.
(b) Registration; Compliance with NASD. To the extent necessary to
offer and sell the Shares, TPIS shall be duly registered or otherwise qualified
under the securities laws of any state or other jurisdiction in which such
Shares may lawfully be sold and in which TPIS is licensed or otherwise
authorized to sell the Shares. TPIS shall be responsible for the training,
supervision and control of its registered representatives for the purpose of the
NASD Rules of Fair Practice and federal and state securities law requirements
applicable in connection with the offering and sale of the Shares. In this
connection, TPIS shall retain written supervisory procedures in compliance with
Conduct Rule 3010 of the NASD Rules of the Association.
(c) Fund Documents. TPIS agrees to offer the Shares for sale in
accordance with the then-current prospectus and statement of additional
information ("SAI") therefor filed with the Securities and Exchange Commission
(the "Commission"). The Fund shall furnish TPIS with copies of all prospectuses,
SAIs, financial statements and other documents which TPIS reasonably requires
for use in connection with the distribution of the Shares. TPIS will be entitled
to rely on all documentation and information furnished to it by the Fund's
management.
(d) Offering Price. All Shares sold by TPIS pursuant to this
Agreement shall be sold at the net asset value per share, as determined in the
manner provided in the Fund's Declaration of Trust in effect at the time of such
determination (and as reflected in the Fund's then-current prospectus), next
determined after the order is accepted by TPIS.
(e) Suspension of Sales. If and whenever the determination of net
asset value is suspended and until such suspension is terminated, no further
orders for Shares shall be accepted by TPIS except unconditional orders placed
with TPIS before it had knowledge of the suspension. In addition, the Fund
reserves the right to suspend sales and TPIS's authority to accept orders for
Shares on behalf of the Fund if, in the judgment of the Board of Trustees of the
Fund (the "Board"), it is in the best interests of the Fund to do so, such
suspension to continue for such period as may be determined by the Board; and in
that event, no orders to purchase Shares shall be processed or accepted by TPIS
on behalf of the Fund while such suspension remains in effect except for Shares
necessary to cover unconditional orders accepted by TPIS before it had knowledge
of the suspension, unless otherwise directed by the Board.
2. Books and Records
(a) The Fund and TPIS shall cause to be maintained and preserved
all books of account and related financial records as are required by the 1934
Act, the NASD,
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and any other applicable laws and regulations. All the books and records
maintained by the Fund (on behalf of TPIS), or by any person on behalf of the
Fund, in connection with the offer and sale of the Shares shall be maintained
and preserved in conformity with the requirements of Rules 17a-3 and 17a-4 under
the 1934 Act or the corresponding provisions of any future federal securities
laws or regulations. All such books and records shall be maintained and held by
the Fund or by any person on behalf of the Fund on behalf of and as agent for
TPIS, whose property they are and shall remain. Such books and records shall be
at all times subject to inspection by the Commission in accordance with Section
17(a) of the 0000 Xxx.
(b) TPIS shall have the responsibility for maintaining the records
of sales representatives licensed, registered and otherwise qualified to sell
the Shares.
3. Reports. TPIS shall cause the Fund to be furnished with such reports
as either or both may reasonably request for the purpose of meeting reporting
and record keeping requirements under the laws of the State of New York and any
other applicable states or jurisdictions.
4. Expenses.
(a) TPIS shall be responsible for all expenses relating to the
distribution of the Shares, including but not limited to:
(i) the costs and expenses of providing the necessary
facilities, personnel, office equipment and supplies, telephone service, and
other utility service necessary to carry out its obligations hereunder;
(ii) charges and expenses of outside legal counsel retained
with respect to activities related to the distribution of the Shares;
(iii) the costs and expenses of printing and delivery of
definitive prospectuses and statements of additional information and any
supplements thereto for prospective purchasers;
(iv) expenses incurred in connection with TPIS's registration
as a broker or dealer or in the registration or qualification of its officers,
directors or representatives under federal and state securities laws;
(v) the costs of promotional, sales and advertising
material; and
(vi) any other expenses incurred by TPIS or its
representatives in connection with performing the obligations of TPIS under this
Agreement.
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5. Non-Exclusivity; Authorized Representations.
(a) The Fund agrees that the services to be provided by TPIS
hereunder are not to be deemed exclusive and TPIS is free to act as distributor
of other variable insurance products or investment company shares issued by the
Fund or any entity affiliated therewith. TPIS shall, for all purposes herein, be
deemed to be an independent contractor and shall, unless otherwise provided or
authorized, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund other than in furtherance of its duties
and responsibilities as set forth in this Agreement.
(b) The Fund is not authorized by TPIS to give, on behalf of TPIS,
any information or to make any representations other than the information and
representations contained in a registration statement or prospectus filed with
the Commission under the 1933 Act and/or the 1940 Act covering Shares, as such
registration statement and prospectus may be amended or supplemented from time
to time. TPIS is not authorized by the Fund to give on behalf of the Fund any
information or to make any representations in connection with the sale of Shares
other than the information and representations contained in a registration
statement or prospectus filed with the Commission under the 1933 Act and/or the
1940 Act covering Shares, as such registration statement and prospectus may be
amended or supplemented from time to time, or contained in shareholder reports
or other material that may be prepared by or on behalf of the Fund for TPIS's
use. This shall not be construed to prevent TPIS from preparing and distributing
tombstone advertisements and sales literature or other material as it may deem
appropriate. No person other than TPIS is authorized to act as principal
underwriter (as such term is defined in the 0000 Xxx) for the Fund.
6. Liability. TPIS will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates. Nothing herein contained shall be
construed to protect TPIS against any liability resulting from the willful
misfeasance, bad faith, or gross negligence of TPIS in the performance of its
obligations and duties or from reckless disregard of its obligations and duties
under this Agreement or by virtue of violation of any applicable law.
7. Regulation.
(a) This Agreement shall be subject to the provisions of the 1940
Act, the 1934 Act and the rules, regulation, and rulings thereunder, and of the
NASD, as in effect from time to time, including such exemptions and other relief
as the Commission, its staff, or the NASD may grant, and the terms hereof shall
be interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, the term "assigned" shall not include any
transactions exempted from Section 15(b)(2) of the 1940 Act.
(b) TPIS shall submit to all regulatory and administrative bodies
having jurisdiction over the present and future operations of the Fund, any
information, reports or other material which any such body by reason of this
Agreement may request or require
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pursuant to applicable laws or regulations. Without limiting the generality of
the foregoing, TPIS shall furnish the Commission and/or the Secretary of State
for the State of New York with any information or reports which the Commission
and/or the Secretary of State may request in order to ascertain whether the
operations of the Fund are being conducted in a manner consistent with
applicable laws or regulations.
8. Investigation and Proceedings.
(a) The Fund and TPIS agree to cooperate fully in any regulatory
inspection, inquiry, investigation, or proceeding or any judicial proceeding
with respect to the Fund or TPIS, their affiliates and their representatives to
the extent that such inspection, inquiry, investigation or proceeding is in
connection with the Shares distributed under this Agreement.
(b) In the case of a customer complaint, the Fund and TPIS will
cooperate in investigating such complaint and shall arrive at a mutually
satisfactory response.
9. Duration and Termination of the Agreement.
(a) This Agreement shall become effective with respect to the
Shares as of the date first written above. It shall become effective as to any
subsequently offered Shares when it has been approved by the Board (including a
majority of members thereof who are not parties to this Agreement nor interested
persons of any such parties) specifically for such Shares. "Subsequently offered
Shares" means Shares issued subsequent to the initial effective date of this
Agreement.
(b) This Agreement shall continue in effect for two years from the
date of its execution and thereafter from year to year, but only so long as such
continuance is specifically approved at least annually by (i) the Board, or by
the vote of a majority of the outstanding voting securities of the Fund, and
(ii) a vote of a majority of those members of the Board who are not parties to
this Agreement nor interested persons of any such parties, cast in person at a
meeting called for the purpose of voting on such approval.
(c) This Agreement may be terminated, without the payment of any
penalty, by the Fund or TPIS on sixty days' written notice to the other party.
This Agreement shall automatically terminate in the event of its assignment.
(d) Upon termination of this Agreement, all authorizations, rights
and obligations shall cease except the obligation to settle accounts hereunder
and the agreements contained in paragraph 8 hereunder.
10. Definitions. The terms "assignment," "interested person," and
"majority of the outstanding voting securities," when used in this Agreement,
shall have the respective meanings specified under the 1940 Act and rules
thereunder.
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11. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
12. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York, as at the
time in effect, and the applicable provisions of the 1940 Act and rules
thereunder or other federal laws and regulations which may be applicable. To the
extent that the applicable law of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act and
rules thereunder or other federal laws and regulations which may be applicable,
the latter shall control.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
be deemed one instrument.
14. Notices. All notices and other communications provided for hereunder
shall be in writing and shall be delivered by hand or mailed first class,
postage prepaid, addressed as follows:
(a) If to the Fund -
TIAA-CREF Mutual Funds
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
----------------
(b) If to TPIS -
Teachers Personal Investors Services, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx XxXxxx
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or to such other address as the Fund or TPIS shall designate by written notice
to the other.
15. No Liability of Shareholders. This Agreement is executed by the
Trustees of the Fund, not individually, but rather in their capacity as Trustees
under the Declaration of Trust made January 13, 1997, as amended. None of the
shareholders of the Fund, Trustees, officers, employees, or agents of the Fund
shall be personally bound or liable under this Agreement, nor shall resort be
had to their private property for the satisfaction of any obligation or claim
hereunder but only to the property of the Fund and, if the obligation or claim
relates to the property held by the Fund for the benefit of one or more but
fewer than all Funds, then only to the property held for the benefit of the
affected Fund.
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16. Miscellaneous. Captions in this Agreement are included for
convenience or reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the Fund and TPIS have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officer on the day and year first above written.
TIAA-CREF MUTUAL FUNDS
By: /s/ Xxxxxx X. Xxxxx Attest: /s/ Xxxx Xxxx
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Title: President Title: Secretary
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TEACHERS PERSONAL INVESTORS SERVICES, INC.
By: /s/ Xxxxxx X. XxXxxx Attest: /s/ Xxxxx Xxxxxxx
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Title: Senior Vice President Title: Assistant Secretary
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