DISTRIBUTION AGREEMENT
THIS
DISTRIBUTION AGREEMENT (this “Agreement”) is made
as of this 30th day of May, 2008 (the “Effective Date”)
between Wilshire Mutual Funds, Inc. (the “Company”), a Maryland
corporation, and SEI Investments Distribution Co. (“Distributor”), a
Pennsylvania corporation.
WHEREAS,
the Company 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 Company is offering units of beneficial interest (hereinafter, “Shares”) of each
portfolio (each, a “Portfolio” and
collectively, the “Portfolios”) of the
Company set forth in Schedule A
(Portfolios) of this Agreement; and
WHEREAS,
the Company 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 Company and Distributor hereby agree as
follows:
ARTICLE
1. Definitions.
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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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“Company”
shall
have the meaning given such term in the preamble of this
Agreement.
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1.9
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“Confidential
Information” shall have the meaning given such term in Section 18.2
of this Agreement.
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1.10
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“Disclosing
Party” shall have the meaning given such term in Section 18.1 of
this Agreement.
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1.11
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“Distribution
Plan” shall have the meaning given such term in Section 6.1 of this
Agreement.
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1.12
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“Distributor”
shall have the meaning given such term in the preamble of this
Agreement.
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1.13
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“Effective
Date”
shall have the meaning given such term in the preamble of this
Agreement.
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1.14
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“FINRA”
shall
have the meaning given such term in Section 5.1(d) of this
Agreement.
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1.15
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“FinCEN”
shall
have the meaning given such term in Section 5.1(d) of this
Agreement.
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1.16
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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
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1.17
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“Portfolio”
shall have the meaning given such term in the preamble of this
Agreement.
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1.18
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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 Company or any Portfolio of the Company
or
any advertising, marketing, shareholder communication, or promotional
material generated by the Company or its investment adviser from
time to
time, as appropriate, including all amendments or supplements
thereto.
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1.19
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“Qualified
Directors” shall have the meaning given such term in Article
10 of
this Agreement.
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1.20
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“Receiving
Party” shall have the meaning given such term in Section 18.1 of
this Agreement.
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1.21
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“Services”
shall
have the meaning given such term in Article
2 of
this Agreement.
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1.22
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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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1.23
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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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1.24
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“Shares”
shall
have the meaning given such term in the preamble of this
Agreement.
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ARTICLE
2. Sale
of Shares;
Services. The Company 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 Company,
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 Company; 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 Company
to give any information or to make any representations other than those
contained in the Prospectus of the Company filed with the SEC or contained
in
shareholder reports or other material that may be prepared by or on behalf
of
the Company 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
Company prior to distribution.
ARTICLE
5. Representations,
Warranties
and Covenants.
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5.1
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Representations
and
Warranties of the Company. The Company 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
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(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
Company. The Company hereby covenants as
follows:
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(a)
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each
Portfolio is a series of the
Company;
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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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3
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(g)
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in
the event it determines that it is in the interest of the Company
to
suspend or terminate the sale of any Shares, the Company shall promptly
notify Distributor of such fact in advance and in writing prior to
the
date on which the Company 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.
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6.1
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As
compensation for providing the Services under this Agreement, Distributor
shall receive from the Company:
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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 Directors of the Company 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 Company’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
Company
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 Company’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 Company to such brokers, dealers and other financial institutions
and
intermediaries as Distributor may from time to time
determine.
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4
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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 Company shall determine it advisable to
qualify
such Shares for sale.
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ARTICLE
7. Indemnification
of
Distributor. The Company agrees to indemnify and hold harmless
Distributor and each of its directors 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
Company (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
Company 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 Company by or on behalf of
Distributor.
In
no
case (i) is the indemnity of the Company to be deemed to protect Distributor
against any liability to the Company 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 Company 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 Company 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 Company of any
claim shall not relieve the Company 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
Company 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 Company elects to assume
the defense of any such claim, the defense shall be conducted by counsel chosen
by the Company and satisfactory to the indemnified defendants in the suit whose
approval shall not be unreasonably withheld. In the event that the
Company 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 Company 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
Company agrees to notify Distributor promptly of the commencement of any
litigation or proceedings against it or any of its officers or Directors in
connection with the issuance or sale of any of its Shares.
5
ARTICLE
8. Indemnification
of
Company. Distributor covenants and agrees that it will
indemnify and hold harmless the Company and each of its Directors and officers
and each person, if any, who controls the Company 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 Company (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 Company by or on behalf of
Distributor.
In
no
case (i) is the indemnity of Distributor in favor of the Company or any other
person indemnified to be deemed to protect the Company or any other person
against any liability to which the Company 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 Company or any person indemnified unless the Company
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 Company or upon any person (or after the Company 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 Company 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 Company 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 Company’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 Directors
of
the Company, or the vote of a majority of the outstanding voting securities
of
the Company, and (ii) the vote of a majority of those Directors of the Company
who are not parties to this Agreement or the Company’s distribution plan or
interested persons of any such party (“Qualified
Directors”), 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 Company. This Agreement may at anytime be
terminated with respect to any Portfolio, by a vote of a majority of Qualified
Directors 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 Company (including with respect to
any Portfolio thereof) shall be sent to Wilshire Mutual Funds, Inc., 0000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxxx X. Xxxxxxx, President.
6
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 Company 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 COMPANY 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.
7
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.
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18.1
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Distributor
and the Company (in such capacity, the “Receiving
Party”) acknowledge and agree to maintain the confidentiality of
Confidential Information (as hereinafter defined) provided by Distributor
and the Company (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.
|
|
18.3
|
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).
|
|
18.4
|
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.
|
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 Company 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.
|
ARTICLE
19. Use
of
Name.
|
19.1
|
The
Company 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 Company 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 Company 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.
|
|
19.2
|
Neither
Distributor nor any of its affiliates shall use the name of the Company
in
any publicly disseminated materials, including sales literature,
in any
manner without the prior written consent of the Company (which shall
not
be unreasonably withheld); provided,
however,
that
the Company 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.
|
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 Company
hereunder. Distributor shall notify the Company 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 Company’s rights
hereunder. Such notification shall include the date of change and the
reason or reasons therefore. Distributor shall notify the Company of
any material claims against it, whether or not covered by insurance that may
materially and adversely affect the Company’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 Company, the Company’s
transfer agent or one or more of the Company’s other service providers in
connection with the Company’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
Company and the Distributor agree that the Company shall be responsible for
its
compliance with all such Regulations. The Company acknowledges that
the
Distributor, transfer agent or another of the Company’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.
|
Wilshire
Mutual Funds, Inc.
By:
_____________________________
Name:
Title:
|
SEI
INVESTMENTS DISTRIBUTION CO.
By:
_____________________________
Name:
Title:
|
|
10
SCHEDULE
A
Wilshire
Portfolios
Effective:
April 23,
2008
Wilshire/MAXAM
Diversity Fund (Investment and Institutional Class Shares)
Effective:
July
12,
2008
Large
Company Growth Portfolio (Investment and Institutional Class
Shares)
Large
Company Value Portfolio (Investment and Institutional Class Shares)
Small
Company Growth Portfolio (Investment and Institutional Class
Shares)
Small
Company Value Portfolio (Investment and Institutional Class Shares)
Dow
Xxxxx
Wilshire 5000 Indexsm
Portfolio (Investment, Institutional, Qualified and Xxxxxx Xxxx Class
Shares)
Wilshire
Large Cap Core 130/30 Fund (Investment and Institutional Class
Shares)
SEI
–
89850V3
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS
DISTRIBUTION CO.
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.
| Rev. 6.9.2008 | Page 12 of 13 |
Mutual
Fund Distribution Agreement
SEI
–
89850V3
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS
DISTRIBUTION CO.
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
SEI
–
89850V3
THIS
DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF SEI INVESTMENTS
DISTRIBUTION CO.
13
