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DISTRIBUTION AGREEMENT
FOR TIAA-CREF INSTITUTIONAL MUTUAL FUNDS
THIS AGREEMENT is made this First day of June, 1999, by and
between TIAA-CREF Institutional 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 seven series (known as the Institutional
Bond Fund, Institutional Equity Index Fund, Institutional Growth and Income
Fund, Institutional Growth Equity Fund, Institutional International Equity
Fund, Institutional Social Choice Equity Fund and the Institutional Market
Fund,), and may consist of additional series or classes in the future;
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
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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.
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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, 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
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(vi) any other expenses incurred by TPIS or its
representatives in connection with performing the obligations of TPIS under
this Agreement.
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
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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 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 shares 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.
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(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 shares," when used in this Agreement,
shall have the respective meanings specified under the 1940 Act and rules
thereunder.
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 Institutional Mutual Funds
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. XxXxxxxxx, Xx.
(b) If to TPIS -
Teachers Personal Investors Services, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
or to such other address as the Fund or TPIS shall designate by written notice
to the other.
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15. 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 INSTITUTIONAL MUTUAL FUNDS
By: /s/ Xxxx X. XxXxxxxxx, Xx. Attest: /s/ Xxxxx X. Xxxxxx
Title: President Title: Assistant Secretary
TEACHERS PERSONAL INVESTORS SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx Attest: /s/ Xxxxx X. Xxxxxx
Title: President Title: Senior Counsel
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