Exhibit 23(e)
SA FUNDS - INVESTMENT TRUST
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Amended and Restated Distribution Agreement made this 14th day of June
2005, by and between SA Funds - Investment Trust, a Delaware business trust (the
"Trust"), and Xxxxxx Xxxx Securities Inc., a Delaware corporation (the
"Distributor").
WHEREAS, the Trust is a registered open-end management investment company
organized as a series trust offering a number of portfolios of securities (each,
a "Fund"), having filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-1A under the Securities Act of
1933 (the "1933 Act") and the Investment Company Act of 1940, as amended;
WHEREAS, the Trust desires to retain the Distributor to act as the
distributor with respect to the issuance and distribution of units of beneficial
interest ("Shares") of each Fund;
WHEREAS, the Distributor is a registered broker-dealer under the Securities
Exchange Act of 1934 (the "1934 Act") and a member of the National Association
of Securities Dealers ("NASD"); and
WHEREAS, the Distributor desires to provide such services to the Trust;
NOW THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints the Distributor as the exclusive
distributor for Shares of each Fund listed in Annex I hereto, as may be amended
by the parties from time to time, on the terms and for the period set forth in
this Agreement and subject to the registration requirements of the 1933 Act and
of the laws governing the sale of securities in the various states, and the
Distributor hereby accepts such appointment and agrees to act in such capacity
hereunder.
2. DEFINITIONS. Wherever they are used herein, the following terms have the
following respective meanings:
a. "1940 Act" means the Investment Company Act of 1940 and the rules and
regulations thereunder as amended from time to time;
b. "Prospectus" means the Prospectus and Statement of Additional
Information constituting parts of the Registration Statement of the Trust under
the 1933 Act as such Prospectus and Statement of Additional Information may be
amended or supplemented and filed with the Commission from time to time;
c. "Registration Statement" means the registration statement most
recently filed from time to time by the Trust with the Commission and effective
under the 1933 Act and the 1940 Act, as such registration statement is amended
by any amendments thereto at the time in effect.
3. DUTIES OF THE DISTRIBUTOR.
(a) The Trust grants to the Distributor the exclusive right to accept or
reject all orders for purchases of Shares of each Fund. The Distributor shall
issue or cause the Trust's transfer agent or shareholder service agent to issue
confirmations of all accepted purchase orders and to transmit a copy of such
confirmations to the Trust. The Trust acknowledges that the Distributor shall
not be obligated to accept any certain number of orders for Shares and nothing
herein shall prevent the Distributor from entering into like distribution
arrangements with other investment companies.
(b) The Distributor agrees to act as agent of the Trust with respect to
the distribution of Shares of each Fund as set forth in the Registration
Statement and in accordance with the provisions thereof.
(c) (i) The Distributor agrees to use its best efforts to encourage and
promote the sale of Shares of the Funds.
(ii) The Distributor shall, at its own expense, execute selected
dealer agreements ("Selected Dealer Agreements") with registered
broker-dealers and other eligible entities providing for the purchase of
Shares of the Funds in the form and as approved by the Board of Trustees of
the Trust, providing for activities which the Distributor deems reasonable
and appropriate and which are primarily intended to result in the sale of
such Shares. Pursuant to this Agreement, the Distributor shall facilitate
the coordination of the performance of any marketing and promotional
services, including advertising; the development and implementation of any
marketing plan; and clearing and filing all advertising, sales, marketing
and promotional materials of the Funds with the NASD.
(d) All activities by the Distributor and its agents and employees which
are primarily intended to result in the sale of Shares shall comply with the
Registration Statement and Prospectus, the instructions of the Board of Trustees
of the Trust and all applicable laws, rules and regulations including, without
limitation, all rules and regulations made or adopted pursuant to the 1940 Act
by the Commission or any securities association registered under the 1934 Act,
including the NASD.
(e) Except as otherwise noted in the Registration Statement and
Prospectus, the offering price for all Shares will be the net asset value of the
Shares of the relevant Fund, as determined in the manner described in the
Registration Statement and Prospectus.
(f) If and whenever the determination of net asset value is suspended and
until such suspension is terminated, no further orders for Shares will be
accepted by the Distributor. In addition, the Trust reserves the right to
suspend sales and Distributor's authority to accept orders for Shares on behalf
of the Trust if, in the judgment of the Trust, it is in the best interests of
the Trust to do so. Suspension will continue for such period as may be
determined by the Trust.
(g) The Distributor is not authorized by the Trust to give any information
or to make any representations other than those contained in the Registration
Statement or Prospectus 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 shall be entitled to rely on and shall not be responsible in any way
for information provided to it by the Trust and its respective service providers
and shall not be liable or responsible for the errors and omissions of such
service providers, provided that the foregoing shall not be construed to protect
the Distributor against any liability to the Trust or the Trust's shareholders
to which the Distributor 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.
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(h) The Board of Trustees shall approve the form of any Soliciting Dealer
Agreement to be entered into by the Distributor.
(i) The Distributor shall ensure that all direct requests for Prospectuses
and Statements of Additional of Information are fulfilled.
(j) The Distributor agrees to make available, at the Trust's request, one
or more members of its staff to attend Board meetings of the Trust in order to
provide information with regard to the ongoing distribution process and for such
other purposes as may be requested by the Board of Trustees of the Trust.
4. DUTIES OF THE TRUST.
(a) The Trust agrees that it will take all action necessary to register an
indefinite number of shares under the 1933 Act. The Trust will make available to
the Distributor such number of copies of its then currently effective Prospectus
as the Distributor may reasonably request. The Trust will furnish to the
Distributor copies of all information, financial statements and other papers
which the Distributor may reasonably request for use in connection with the
distribution of Shares. The Trust shall keep the Distributor informed of the
jurisdictions in which the Trust has effected notice filings of shares of the
Trust for sale under the securities laws thereof.
(b) The Trust represents to the Distributor that the Registration
Statement and Prospectus filed by the Trust with the Commission with respect to
the Trust have been prepared in conformity with the requirements of the 1933
Act, the 1940 Act and the rules and regulations of the Commission thereunder.
The Trust will notify the Distributor promptly of any amendment to the
Registration Statement or supplement to the Prospectus and any stop order
suspending the effectiveness of the Registration Statement.
5. EXPENSES.
(a) The Distributor will bear the following costs and expenses relating to
the distribution of Shares of the Funds: (a) the costs of processing and
maintaining records of purchases of Shares; (b) the costs of maintaining the
records required of a broker-dealer registered under the 1934 Act; (c) the
expenses of maintaining its registration or qualification as a dealer or broker
under federal or state laws; (d) the expenses incurred by the Distributor in
connection with normal (non-expedited) NASD filing fees; (e) the cost of
printing and mailing of the Prospectus (other then those furnished to existing
shareholders) and any sales literature used by the Distributor; and (f) all
other expenses incurred in connection with the distribution services
contemplated herein, except as specifically provided in this Agreement.
6. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless the Distributor and
any soliciting dealer that enters into a Soliciting Dealer Agreement with the
Distributor, which provides for such indemnification, in the form approved by
the Board of Trustees (each an "Indemnified Dealer") and each of the directors,
officers, agents and employees and any person who controls the Distributor or
the Indemnified Dealer within the meaning of Section 15 of the 1933 Act (any of
the Distributor, any Indemnified Dealer, their officers, agents, employees and
directors or such control persons, for purposes of this paragraph, an
"Indemnitee") against any loss, liability, claim, damages or expense (including
the
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reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith) arising out of or based upon the claim 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 under the 1933 Act, or
any other statute or the common law. However, the Trust does not agree to
indemnify the 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 the Distributor. The Trust will also
not indemnify any Indemnitee with respect to any untrue statement or omission
made in the Registration Statement or Prospectus that is subsequently corrected
in such document (or an amendment thereof or supplement thereto) if a copy of
the Prospectus (or such amendment or supplement) was not sent or given to the
person asserting any such loss, liability, claim, damage or expense at or before
the written confirmation to such person in any case where such delivery is
required by the 1933 Act and the Trust had notified the Distributor of the
amendment or supplement prior to the sending of the confirmation. In no case (i)
is the indemnity of the Trust in favor of any Indemnitee to be deemed to protect
the Indemnitee against any liability to the Trust or its shareholders to which
the Indemnitee 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 Trust to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against any Indemnitee unless the
Indemnitee 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 Indemnitee
(or after Indemnitee 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 any Indemnitee 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, but if the Trust elects to assume the defense, the
defense shall be conducted by counsel chosen by it and satisfactory to
Indemnitee, defendant or defendants in the suit. In the event the Trust elects
to assume the defense of any suit and retain counsel, Indemnitee, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them. If the Trust does not elect to assume the defense of
any suit, it will reimburse the Indemnitee, defendant or defendants in the suit,
for the reasonable fees and expenses of any counsel retained by them. The Trust
agrees to notify the Distributor and any Indemnified Dealer 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 the Shares.
(b) The Distributor agrees to indemnify and hold harmless the Trust and
each of its Trustees and officers and any person who controls the Trust within
the meaning of Section 15 of the 1933 Act (for purposes of this paragraph, the
Trust and each of its Trustees and officers and its controlling persons are
collectively referred to as the "Trust Affiliates") 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 incurred in connection therewith) which the Trust Affiliate may
incur under the 1933 Act or any other statute or common law, but only to the
extent that such loss, liability, claim, damages or expense shall arise out of
or be based upon (i) the allegation of any wrongful act of the Distributor or
any of its employees or (ii) allegation 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 any Trust Affiliate
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to be deemed to protect any Trust Affiliate against any liability to the Trust
or its security holders to which such Trust Affiliate 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 any Trust Affiliate unless the Trust Affiliate shall have
notified the Distributor in writing of the claim within a reasonable time after
the summons or the first written notification giving information of the nature
of the claim shall have been served upon the Trust Affiliate (or after the Trust
Affiliate 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 Affiliate 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 it and satisfactory
to the Trust, its officers and Board and to any controlling person or persons,
defendant or defendants in the suit. In the event that Distributor elects to
assume the defense of any suit and retain counsel, the Trust or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the Distributor does not
elect to assume the defense of any suit, it will reimburse the Trust, its
officers and Board or controlling person or persons, defendant or 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 issuance and sale of
any of the Shares.
(c) No indemnified party shall settle any claim against it for which it
intends to seek indemnification from the indemnifying party, under the terms of
section 6(a) or 6(b) above, without the prior written notice to and consent from
the indemnifying party, which consent shall not be unreasonably withheld. No
indemnified or indemnifying party shall settle any claim unless the settlement
contains a full release of liability with respect to the other party in respect
of such action. This section 6 shall survive the termination of this Agreement.
7. REPRESENTATIONS.
(a) The Distributor represents and warrants that (i) it is duly organized
as a Delaware corporation and is and at all times will remain duly authorized
and licensed to carry out its services as contemplated herein; (ii) the
execution, delivery and performance of this Agreement are within its power and
have been duly authorized by all necessary action; and (iii) its entering into
this Agreement or providing the services contemplated hereby does not conflict
with or constitute a default or require a consent under or breach of any
provision of any agreement or document to which the Distributor is a party or by
which it is bound.
(b) The Trust represents and warrants that (i) it is duly organized as a
Delaware business trust and is and at all times will remain duly authorized to
carry out its obligations as contemplated herein; (ii) the execution, delivery
and performance of this Agreement are within its power and have been duly
authorized by all necessary action; and (iii) its entering into this Agreement
does not conflict with or constitute a default or require a consent under or
breach of any provision of any agreement or document to which the Trust is a
party or by which it is bound.
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8. DURATION, TERMINATION AND AMENDMENT.
(a) This agreement shall become effective on the effective date of the
Registration Statement and unless terminated as provided herein, shall continue
for two years from its effective date, and thereafter from year to year,
provided such continuance is approved annually by the vote of a majority of the
Board of Trustees, and by the vote of those Trustees who are not "interested
persons" of the Trust (the "Independent Trustees"), cast in person at a meeting
called for the purpose of voting on the approval. This Agreement may be
terminated at any time, without the payment of any penalty, as to each Fund (i)
by vote of a majority of the Independent Trustees or (ii) by vote of a majority
(as defined in the 0000 Xxx) of the outstanding voting securities of the Fund,
on at least sixty (60) days prior written notice to the Distributor. In
addition, this Agreement may be terminated at any time by the Distributor upon
at least sixty (60) days prior written notice to the Trust. This Agreement shall
automatically terminate in the event of its assignment. As used in this
paragraph, the terms "assignment" and "interested persons" shall have the
respective meanings specified in the 1940 Act.
(b) No provision of this Agreement may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
an enforcement of the change, waiver, discharge or termination is sought.
9. NOTICE. Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Distributor: Xxxxxx Xxxx Securities Inc., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxxxxxxxxx 00000; if to the Trust: SA Funds - Investment Trust, 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxxxxxxxxx 00000.
10. CHOICE OF LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, without giving effect to
the choice of laws provisions thereof.
11. COUNTERPARTIES. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12. SEVERABILITY. If any provisions of this Agreement shall be held or made
invalid, in whole or in part, then the other provisions of this Agreement shall
remain in force. Invalid provisions shall, in accordance with this Agreement's
intent and purpose, be amended, to the extent legally possible, by valid
provisions in order to effectuate the intended results of the invalid
provisions.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first set forth
above.
SA FUNDS - INVESTMENT TRUST
By: /s/Xx Xxxxxx
------------
Name: Xx Xxxxxx
Title: President and Chief Executive Officer
XXXXXX XXXX SECURITIES INC.
By: /s/Xxx Xxxxxx
-------------
Name: Xxx Xxxxxx
Title: President
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ANNEX I
SA Fixed Income Fund
SA U.S. Market Fund
SA U.S. HBtM Fund
SA U.S. Small Company Fund
SA International HBtM Fund
SA International Small Company Fund
As of June 14, 2005
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