DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (this "AGREEMENT') is made as of this 1st day of
Septemner, 2015, by and between Xxxxxx Diversified Opportunities Fund (the
"TRUST"), a statutory trust formed under the laws of Delaware, and SEI
Investments Distribution Co. (the "DISTRIBUTOR"), a Pennsylvania corporation.
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as
amended (the "1940 ACT"), as a closed-end, diversified management investment
company that operates as an "interval fund" pursuant to Rule 23c-3 promulgated
by the SEC pursuant to the 1940 Act;
WHEREAS, the Trust is authorized to issue shares of beneficial interest in the
Trust ("SHARES") pursuant to the Trust's registration statement on Form N-2, as
it may be amended or supplemented from time to time ("REGISTRATION STATEMENT")
to investors who meet the definition of "qualified clients" under Rule 205-3
under the Investment Advisers Act of 1940, as amended (the "ADVISORS' ACT");
and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 ACT") and is a
member of Financial Industry Regulatory Authority, Inc. ("FINRA"); and
WHEREAS, the Trust wishes to retain the Distributor to serve as distributor of
each class of shares that the Trust may issue (each, a "CLASS" or collectively,
the "CLASSES"), all in accordance with the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained
and intending to be legally bound, the parties hereby agree as follows:
SECTION 1 APPOINTMENT
1.1 DISTRIBUTOR. The Trust hereby appoints Distributor as its
non-exclusive distributor of Shares and to provide such other services in
accordance with the terms set forth in this Agreement. Distributor accepts such
appointment and agrees to furnish certain related services as set forth in this
Agreement.
1.2 DIRECT SALES. Notwithstanding Distributor's appointment as
distributor of Shares, the Trust reserves the right to make direct sales of
Shares without sales charges consistent with the terms of the then current
Prospectus, and to engage in other legally authorized transactions in its
Shares which do not involve the sale of Shares to the general public. As used
in this Agreement, the term, "PROSPECTUS" means any prospectus, Registration
Statement, statement of additional information, proxy solicitation and
repurchase offer materials, annual or other periodic report of the Trust or any
advertising, marketing, shareholder communication or promotional material
generated by the Trust or its investment adviser (the "INVESTMENT ADVISER")
from time to time, as appropriate, including all amendments or supplements
thereto and applicable law. Such other transactions may include, without
limitation, transactions between the Trust or any Class of Shares and its
Shareholders only; transactions involving the reorganization of the Trust; and
transactions involving the merger or combination of the Trust with another
corporation or trust.
SECTION 2 SOLICITATION OF SALES AND OTHER SERVICES
2.1 SOLICITATION OF SALES. The Trust grants to Distributor the right
to sell its Shares authorized for issue, at the net asset value per Share, plus
any applicable sales charges, in accordance with the Prospectus, as agent and
on behalf of the Trust, during the term of this Agreement and subject to the
registration requirements of the 1933 Act, the rules and regulations of the SEC
and the laws governing the sale of securities in the various states ("BLUE SKY
LAWS"). Distributor will have the right, as agent, to sell Shares indirectly to
the public through broker-dealers which are members of FINRA and which are
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acting as introducing brokers pursuant to clearing agreements with Distributor;
to broker-dealers which are members of FINRA and which have entered into
selling agreements with Distributor; or through other financial intermediaries,
in each case against orders therefor. In consideration of these rights granted
to the Distributor, the Distributor agrees to use all reasonable efforts to
secure purchasers for shares of the Trust; PROVIDED, HOWEVER, that the
Distributor will not be prevented from entering into like arrangements
(including arrangements involving the payment of underwriting commissions) with
other issuers. The provisions of this paragraph do not obligate the
Distributor to register as a broker or dealer under the Blue Sky Laws of any
jurisdiction or laws of any foreign jurisdiction in which it is not now
registered or to maintain its registration in any jurisdiction in which it is
now registered or obligate the Distributor to sell any particular number of
Shares. The Distributor will not direct remuneration from commissions paid by
the Trust for portfolio securities transactions to a broker or dealer for
promoting or selling Shares. The Trust reserves the right to refuse at any time
or times to sell any of its Shares for any reason deemed adequate by it. All
orders through the Distributor will be subject to acceptance and confirmation
by the Trust.
2.2 OTHER SERVICES. Without limiting the foregoing, the Distributor
will perform or supervise the performance by others of the additional services
set forth herein, including those set forth in SCHEDULE A, attached hereto. If
Distributor delegates any obligations hereunder, it shall be solely responsible
for ensuring all such delegates comply with the terms of this Agreement and
Distributor shall subject to the terms of this Agreement, remain responsible
and liable for any non-compliance by such delegates such that any
non-compliance by delegates shall constitute non-compliance by Distributor.
SECTION 3 REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRUST. The Trust
represents, warrants and covenants that:
(a) it is duly organized, validly existing and in good
standing under the laws of the state of its formation, and has all requisite
power under the laws of such state and applicable federal law to conduct its
business as now being conducted and to perform its obligations as contemplated
by this Agreement;
(b) this Agreement has been duly authorized by the board of
trustees of the Trust (the "BOARD"), including by unanimous affirmative vote of
all of the independent trustees of the Trust; and when executed and delivered
by the Trust, will constitute a legal, valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, except
insofar as enforcement may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or general principles
of equity;
(c) it shall timely perform all obligations identified in
this Agreement as obligations of the Trust, including, without limitation,
providing the Distributor with all due diligence and marketing materials
reasonably requested by the Distributor and giving all necessary consents or
approvals as the Board considers appropriate and consistent with its fiduciary
duties acting in good faith;
(d) to the best of its knowledge, 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, its advisor or
its properties or assets which are reasonably likely to, individually or in the
aggregate, have a material effect upon its business or financial condition, and
there is no injunction, order, judgment, decree, or regulatory restriction
imposed specifically upon it or any of its properties or assets that are
reasonably likely to have a material effect upon its business or financial
condition;
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(e) it is an investment company that is duly registered
under the 1933 Act and the 1940 Act;
(f) 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;
(g) it 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;
(h) each Prospectus has been prepared in accordance with
all applicable laws and regulations and, where such Prospectus is required to
be filed with a regulatory body, at the time such Prospectus was filed and
became effective, no Prospectus included an untrue statement of a material fact
or omitted to state a material fact that was required to be stated therein so
as to make the statements contained in such Prospectus not misleading;
(i) it will notify the Distributor as soon as reasonably
practical after becoming aware of any matter that it believes is reasonably
likely to materially affect the Distributor's performance of its duties and
obligations under this Agreement, including any proposed amendment to the
Prospectus;
(j) 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;
(k) it shall fully cooperate with requests from government
regulators and the Distributor for information relating to customers and/or
transactions involving the Shares, as permitted by law and in accordance with
relevant confidentiality obligations, in order for the Distributor to comply
with its regulatory obligations; and
(l) in the event it determines that it is in the interest
of the Trust to suspend or terminate the sale of any Shares, the Trust shall
promptly notify the Distributor of such fact (where possible) in advance and in
writing prior to the date on which the Trust desires to cease offering the
Shares.
3.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF DISTRIBUTOR.
Distributor hereby represents, warrants and covenants as follows:
(a) 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 of the
Distributor, enforceable against it in accordance with its terms, except
insofar as enforcement may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or general principles
of equity;
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(b) information about litigation to which Distributor or
any of its affiliates is a party will be set forth in SEI Investments Company's
periodic SEC filings in accordance with the rules of the SEC and will be
publicly available in filings on Forms 10-Q, 10-K and 8-K from time to time;
however, 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 are
reasonably likely to, individually or in the aggregate, have a material effect
upon its business or financial condition, and there is no injunction, order,
judgment, decree, or regulatory restriction imposed specifically upon it or any
of its properties or assets which is reasonably likely to have a material
effect on the Distributor's ability to perform the services hereunder;
(c) it is registered as a broker-dealer with the SEC under
the 1934 Act and a member of FINRA, and agrees to comply with all applicable
rules and regulations of FINRA and to notify the Company in the event that it
is suspended or expelled from FINRA;
(d) it shall not provide any information about the Trust or
make any representations other than those contained in the current prospectus
of the Trust filed with the SEC or contained in shareholder reports or other
material that may be prepared by or on behalf of the Trust for the
Distributor's use;
(e) it may prepare and distribute sales literature and
other material as it may deem appropriate, provided that such literature and
materials have been prepared in accordance with applicable rules and
regulations; and provided further, that such materials have been supplied to
and approved by the Trust and the Investment Adviser prior to their use, which
approval the Trust and the Investment Adviser may grant or withhold in their
sole discretion. The Distributor agrees to furnish to the Trust any comments
provided by regulators with respect to such materials;
(f) it will maintain compliance policies and procedures (a
"Compliance Program") reasonably designed to prevent violations of the federal
securities laws (as defined in Rule 38a-1 of the 0000 Xxx) with respect to
Distributor's services to the Trust under this Agreement, to provide
certifications to such effect upon reasonable request of the Company and to
provide all reasonably requested information with respect to the Compliance
Program, including without limitation, information and certifications with
respect to material violations of the Compliance Program and any material
deficiencies therein, as may be reasonably requested by the Trust's Chief
Compliance Officer or Board with respect to Distributor's services to the Trust
under this Agreement;
(g) it has an 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;
(h) it has as of the date hereof, and shall at all times
have and maintain, net capital of not less than that required by Rule 15c3-1
under the 1934 Act, or any successor provision thereto;
(i) upon reasonable request by the Trust, Distributor shall
provide the Trust with information relating to the services provided pursuant
to this Agreement as necessary and applicable to enable the Trust to complete
required regulatory filings; and
(j) it shall deliver or cause the delivery of a Prospectus
to persons purchasing Shares and shall maintain records of both orders placed
with the Distributor and confirmations of acceptance furnished by Distributor.
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SECTION 4 REGISTRATION OF SHARES
The Trust agrees that it will take all action necessary to register or qualify
Shares under the federal and applicable state securities laws so that there
will be available for sale the number of Shares the Distributor (and each
financial intermediary, as applicable) may reasonably be expected to sell and
to pay all fees associated with said registration. The Trust will make
available to the Distributor such number of copies of its 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 of the Trust. Notwithstanding the foregoing, the Trust may terminate,
suspend or withdraw the offering of Shares whenever, in its sole discretion, it
deems such action to be desirable.
The Trust or the Investment Adviser shall procure that the Distributor shall be
advised from time to time concerning the states and other jurisdictions in
which solicitations of eligible investors by or on behalf of the Trust may be
made under the applicable Blue Sky Laws.
SECTION 5 AGREEMENTS WITH FINANCIAL INTERMEDIARIES
The Distributor will have the right to enter into agreements with financial
intermediaries of its choice for the sale of Shares and to fix therein the
portion of the sales charge, if any, that may be allocated to the financial
intermediaries on such terms and conditions as the Distributor will deem
necessary or appropriate. Shares sold to financial intermediaries will be for
resale by such intermediaries only at the public offering price set forth in
the applicable Prospectus or as otherwise permissible under the federal and
state securities laws. With respect to financial intermediaries who are acting
as brokers or dealers within the United States, the Distributor will offer and
sell Shares, as agent for the Trust, only to such financial intermediaries who
are members in good standing of FINRA. The Trust acknowledges that Distributor
may act as the Trust's agent for transmitting, or arranging for transmission
of, distribution and/or shareholder servicing fees to be paid to financial
intermediaries in accordance with arrangements between the Trust and such
financial intermediaries.
SECTION 6 EXPENSES
6.1 TRUST EXPENSES. The Trust will pay all fees and expenses (i) in
connection with the preparation, setting in type and filing of any Prospectus
under the 1933 Act and amendments for the issue of its Shares; (ii) if
applicable, in connection with the registration and qualification of Shares for
sale in the various states in which the Board will determine advisable to
qualify such Shares for sale; (iii) of preparing, setting in type, printing and
mailing any report or other communication to shareholders of the Trust in their
capacity as such; and (iv) of preparing, setting in type, printing and mailing
any Prospectus sent to existing shareholders.
6.2 DISTRIBUTOR EXPENSES. Distributor will pay all of its costs and
expenses (other than expenses and costs agreed to be payable by the Trust and
other than expenses which one or more dealers may bear pursuant to any
agreement with Distributor) incurred by it in connection with the performance
of its distribution duties hereunder. The Distributor shall pay, among other
things, (i) all expenses relating to Distributor's broker-dealer qualification
and registration under the 1934 Act; and (ii) all other general business
overhead expenses incurred in connection with the distribution services
provided under this Agreement, including office space, equipment, and personnel
as may be necessary or convenient to provide the services.
SECTION 7 COMPENSATION
7.1 COMPENSATION TO DISTRIBUTOR. As compensation for providing the
services under this Agreement, the Distributor will receive from the Trust:
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all distribution and service fees, if any, at the rate and
under the terms and conditions set forth in the Trust's distribution plan
established pursuant to Rule 12b-1 under the 1940 Act (each, a "DISTRIBUTION
PLAN") and/or shareholder services and similar plans applicable to the
appropriate class of shares of the Trust, as such plans may be amended from
time to time, and subject to any further limitations on such fees as the Board
may impose;
all front-end sales charges, if any, on purchases of Shares
of the Trust sold subject to such charges as described in the Trust's
Prospectus, as amended from time to time. The Distributor, or brokers, dealers
and other financial institutions and intermediaries that have entered into
sub-distribution agreements with the Distributor, may collect the gross
proceeds derived from the sale of such Shares, remit the net asset value
thereof to the Trust upon receipt of the proceeds and retain the applicable
sales charge; and
all contingent deferred sales charges ("CDSC"), if any,
applied on redemptions of Shares subject to such charges on the terms and
subject to such waivers as are described in the Trust's Prospectus, or as
otherwise required pursuant to applicable law.
7.2 PAYMENTS TO FINANCIAL INTERMEDIARIES. The Distributor may
re-allow any or all of the distribution or service fees, front-end sales
charges and CDSCs that it is paid by the Trust to such brokers, dealers and
other financial institutions and intermediaries as the Distributor may from
time to time determine.
7.3 COMMISSIONS. Distributor may participate directly or indirectly in
brokerage commissions or "spreads" for transactions in portfolio securities of
the Trust that are bought or sold through Distributor.
SECTION 8 INDEMNIFICATION; CONTRIBUTION
8.1 INDEMNIFICATION OF DISTRIBUTOR. The Trust agrees to indemnify,
defend and hold harmless, the Distributor, each of its directors, officers,
employees and each person, if any, who controls, is controlled by or is under
common control with, the Distributor within the meaning of Section 15 of the
1933 Act (collectively, the "DISTRIBUTOR INDEMNIFIED PARTIES") from and against
any and all losses, claims, damages or liabilities, joint or several,
whatsoever (including any investigation, legal or other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted) to which the Distributor Indemnified Parties
may become subject, arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus or any
document incorporated by reference therein or filed as an exhibit thereto, or
any marketing literature or materials distributed on behalf of the Trust with
respect to the securities covered by the Prospectus (the "COVERED DOCUMENTS")
or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Distributor for any legal or other expenses reasonably
incurred by the Distributor in connection with investigating or defending any
such action or claim as such expenses are incurred; (ii) any claims of
infringement or misappropriation of the intellectual property rights of a third
party against the Distributor arising out of or based on the use by the
Distributor of any intellectual property of such third party, including,
without limitation, indexes, strategies or trademarks that serve as the basis
for the Trust or are used by the Trust (the "INTELLECTUAL PROPERTY") in
connection with its duties as Distributor pursuant to this Agreement,
regardless of whether such third party's rights or claims of rights to such
Intellectual Property were disclosed to Distributor and (iii) any breach of any
representation, warranty or covenant made by the Trust in this Agreement;
except to the extent that any such loss, claim, damage or liability pursuant to
sub clauses (i), (ii) and (iii) of this SECTION 8.1 is caused by Distributor
Indemnified Parties' or Distributor's delegates' gross negligence, bad faith,
fraud, reckless disregard, willful misconduct or criminal misconduct in the
performance of the services hereunder; provided, however, that the Trust shall
not be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the
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Covered Documents about the Distributor or any Distributor Indemnified Party in
reliance upon and in conformity with written information furnished to the Trust
by the Distributor expressly for use therein.
8.2 INDEMNIFICATION OF THE TRUST. Distributor will indemnify and hold
harmless the Trust, each of its directors, officers, employees and each person,
if any, who controls, is controlled by or is under common control with, the
Trust within the meaning of Section 15 of the 1933 Act (collectively, the
"TRUST INDEMNIFIED PARTIES") from and against any and all losses, claims,
damages or liabilities, joint or several, whatsoever (including any
investigation, legal or other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted) to which the Trust Indemnified Parties may become subject to the
extent that (i) any untrue statement or alleged untrue statement or omission or
alleged omission was made in a Covered Document, in reliance upon and in
conformity with written information furnished to the Trust by the Distributor
about the Distributor expressly for use therein, or the Distributor's omission
to state therein a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or (ii)
such action is a direct result of an action, inaction, or omission of
Distributor pursuant to this Agreement involving gross negligence, bad faith,
fraud, reckless disregard, willful misconduct or criminal misconduct by
Distributor, its affiliates, officers, directors, employees, and/or its
agents.
8.3 INDEMNIFICATION PROCEDURES.
If any action or claim shall be brought against any
Distributor Indemnified Party or Trust Indemnified Party (any such party, an
"INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED PARTIES"), in respect of
which indemnity may be sought against the other party hereto (the "INDEMNIFYING
PARTY"), such Indemnified Party shall promptly notify the Indemnifying Party in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel and payment of all fees and expenses; but the
omission so to notify the Indemnifying Party shall not relieve it from any
liability which it may have to any indemnified party except to the extent such
Indemnifying Party has been materially prejudiced by such failure.
Any Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party has agreed in writing to
pay such fees and expenses, (ii) the Indemnifying Party has failed to assume
the defense and employ counsel, or (iii) the named parties to any such action
(including any impleaded party) included such Indemnified Party and the
Indemnifying Party and such Indemnified Party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnifying Party or
which may also result in a conflict of interest (in which case if such
Indemnified Party notifies the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for all such Indemnified
Parties.
The Indemnifying Party shall not, without the written
consent of the Indemnified Party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the Indemnified Party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the Indemnified Party from
all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any Indemnified Party.
The Indemnifying Party shall not be liable for any
settlement of any such action effected WITHOUT ITS WRITTEN CONSENT, BUT IF SUCH
ACTION IS SETTLED WITH THE WRITTEN CONSENT OF THE INDEMNIFYING PARTY,
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or if there shall be a final judgment for the plaintiff in any such action and
the time for filing all appeals has expired, the Indemnifying Party agrees to
indemnify and hold harmless any Indemnified Party from and against any loss or
liability by reason of such settlement or judgment.
The obligations of the Indemnifying Party under this
SECTION 8 shall be in addition to any liability that the Indemnifying Party may
otherwise have.
8.4 CONTRIBUTION. If the indemnification provided for in this
SECTION 8 is insufficient or unavailable to any Indemnified Party under this
SECTION 8 in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative benefits received by the Trust on the one hand and the
Distributor on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the Indemnified Party failed to give the notice required
under SECTION 8.3(A) , above (and the Indemnifying Party was prejudiced by such
failure), then each Indemnifying Party shall contribute to such amount paid or
payable by such Indemnified Party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Trust on the one hand and the Distributor on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Trust on the
one hand and the Distributor on the other shall be deemed to be in the same
proportion as the amount of gross proceeds received by the Trust from the
offering of the Shares under this Agreement (expressed in dollars) bears to the
gross proceeds received by the Distributor under this Agreement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Trust on the one hand or the Distributor on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust and the Distributor agree that it
would not be just and equitable if contributions pursuant to this SECTION 8.4
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to herein.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8.5 CONSEQUENTIAL DAMAGES. Notwithstanding anything in this
Agreement to the contrary, neither party shall be liable under this Agreement
to the other party hereto for any punitive, consequential, special or indirect
losses or damages.
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SECTION 9 TERM AND TERMINATION
This Agreement will be effective upon its execution, and, unless terminated as
provided, will continue in force for two years and thereafter from year to
year, provided that such annual continuance is approved by either (i) the vote
of a majority of the Trustees of the Trust, or the vote of a majority of the
outstanding voting securities of the Trust and (ii) the vote of a majority of
those Trustees of the Trust who are not parties to this Agreement or the
Trust's distribution plan(s) or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on the approval. This
Agreement may be terminated at any time without penalty by a vote of the
Trustees; by vote of a majority of the outstanding voting securities of the
Trust; or by the Distributor upon not less than sixty days prior written notice
to the other party; and shall automatically terminate upon its assignment. As
used in this paragraph the terms, "vote of a majority of the outstanding voting
securities," "assignment" and "interested person" will have the respective
meanings specified in the 1940 Act. In the event the Trust gives notice of
termination, all reasonable expenses associated with the movement (or
duplication) of records and materials and conversion thereof to a successor
service provider, and all trailing out-of-pocket expenses incurred by
Distributor, will be borne by the Trust.
SECTION 10 MISCELLANEOUS
10.1 RECORDS. The books and records pertaining to the Trust, which
are in the possession or under the control of Distributor, will be the property
of the Trust. Such books and records will be prepared and maintained as
required under the 1940 Act and other applicable securities laws, rules and
regulations. The Trust and its authorized persons will have access to such
books and records at all times during the Distributor's normal business hours.
Upon the reasonable request of the Trust, the Distributor will make available
or provide copies of such books and records to the Trust or its authorized
persons, as requested, at the Trust's expense.
10.2 INDEPENDENT CONTRACTOR. The Distributor will undertake and
discharge its obligations hereunder as an independent contractor. Neither
Distributor nor any of its officers, directors, employees or representatives is
or will be an employee of the Trust in connection with the performance of
Distributor's duties hereunder. Distributor will be responsible for its own
conduct and the employment, control, compensation and conduct of its agents and
employees, and for any injury to such agents or employees or to others through
its agents and employees. Any obligations of Distributor hereunder may be
performed by one or more third parties or affiliates of Distributor and
Distributor accepts responsibility and liability for their performance as if
the obligations were performed by Distributor.
10.3 NOTICES. All notices provided for or permitted under this
Agreement will be deemed effective upon receipt, and will 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 the Distributor will be
sent to the attention of: General Counsel, SEI Investments Distribution Co., 0
Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000. Notices to the Trust will be
sent to the Trust at 0 Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000 with a
copy to the Investment Adviser c/o Winton Capital Management Limited, Xxxxx
Xxxxx, 00 Xxxxxxxxxxx Xxxxx, Xxxxxx X0 ONE, attention: General Counsel, with a
copy to XXXXX-XXXXXX@XXXXXXXXXXXXX.XXX.
10.4 DISPUTE RESOLUTION. Whenever either party desires to institute
legal proceedings against the other party concerning this Agreement, it will
provide written notice to that effect to such other party. The party providing
such notice will refrain from instituting said legal proceedings for a period
of thirty (30) days following the date of provision of such notice. During such
period, the parties will attempt in good faith to amicably resolve their
dispute by negotiation among their executive officers.
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
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10.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire agreement between the parties hereto 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 amended or waived only by an instrument in
writing signed by the party against which enforcement of such amendment or
waiver is sought.
10.6 NON-SOLICITATION. During the term of this Agreement and for a
period of one (1) year afterward, the Trust will not recruit, solicit, employ
or engage, for the Trust or any other person, any of the Distributor's
employees.
10.7 GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the laws of the New York without giving effect to any
conflict of laws or choice of laws rules or principles thereof. To the extent
that the applicable laws of New York, or any of the provisions of this
Agreement, conflict with the applicable provisions of the 1940 Act, the latter
will control.
10.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which will constitute one and the same instrument. Each
such counterpart will be deemed an original, and it will not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart. This Agreement will be deemed executed by both parties when any
one or more counterparts hereof or thereof, individually or taken together,
bears the original, scanned or facsimile signatures of each of the parties.
10.9 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.
10.10 SEVERABILITY. Any provision of this Agreement that is
determined to be invalid or unenforceable in any jurisdiction will 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 will 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 will be enforceable as so modified.
10.11 CONFIDENTIAL INFORMATION.
The Distributor and the Trust (in such capacity, the
"RECEIVING PARTY") acknowledge and agree to maintain the confidentiality of
Confidential Information (as hereinafter defined) provided by the Distributor
and the Trust (in such capacity, the "DISCLOSING PARTY") in connection with
this Agreement. The Receiving Party will not disclose or disseminate the
Disclosing Party's Confidential Information to any Person other than (a) those
employees, agents, contractors, subcontractors and licensees of the Receiving
Party, or (b) with respect to the Distributor as a Receiving Party, to those
employees, agents, contractors, subcontractors and licensees of any agent or
affiliate, who have a need to know it in order to assist the Receiving Party in
performing its obligations, or to permit the Receiving Party to exercise its
rights under this Agreement. In addition, the Receiving Party (a) will take all
reasonable steps to prevent unauthorized access to the Disclosing Party's
Confidential Information, and (b) will not use the Disclosing PARTY'S
CONFIDENTIAL INFORMATION, OR AUTHORIZE OTHER PERSONS TO USE THE DISCLOSING
PARTY'S CONFIDENTIAL
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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 will
in no event be less than a reasonable standard of care.
The term "CONFIDENTIAL INFORMATION," as used herein, will
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) , markets software, processes, formulas,
technology, designs, drawings, and marketing or distribution or sales methods
or systems, sales or profit figures, or other financial information 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 ,
whether or not such information is marked as confidential.
Notwithstanding anything to the contrary herein, the
provisions of this SECTION 10.11 respecting Confidential Information will not
apply to the extent, but only to the extent, that such Confidential Information
is: (a) already known to the Receiving Party free of any restriction at the
time it is obtained from the Disclosing Party, (b) 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) independently developed by or for the
Receiving Party without reference to or use of any Confidential Information of
the Disclosing Party; or (e) 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 will 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).
The Receiving Party will advise its employees, agents,
contractors, subcontractors and licensees, and will 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 SECTION 10.11 , and will be responsible for ensuring compliance by
its and its affiliates' employees, agents, contractors, subcontractors and
licensees with such obligations. In addition, the Receiving Party will 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 SECTION 10.11 . The Receiving
Party will 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.
Upon the Disclosing Party's written request following the
termination of this Agreement, the Receiving Party promptly will return to the
Disclosing Party, or destroy, all Confidential Information of the Disclosing
Party provided under or in connection with this Agreement, including all
copies, portions and summaries thereof. Notwithstanding the foregoing sentence,
(a) the Receiving Party may retain one copy of each item of the Disclosing
Party's Confidential Information for purposes of identifying and establishing
its rights and obligations under this Agreement, for archival or audit purposes
and/or to the extent required by applicable law, and (b) the Distributor will
have no obligation to return or destroy Confidential Information of the Trust
that resides in save tapes of Distributor; provided, however, that in either
case all such Confidential Information retained by the Receiving Party will
remain subject to the provisions of SECTION 10.11 for so long as it is so
retained. If requested by the Disclosing Party, the Receiving Party will
certify in writing its compliance with the provisions of this paragraph.
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SEI INVESTMENTS DISTRIBUTION CO.
10.12 USE OF NAME.
The Trust will not use the name of the Distributor, or any
of its affiliates, in any Prospectus, sales literature, and other material
relating to the Trust in any manner without the prior written consent of the
Distributor (which will not be unreasonably withheld); PROVIDED, HOWEVER, that
the Distributor hereby approves all lawful uses of the names of the Distributor
and its affiliates in the Prospectus of the Trust 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.
Neither the Distributor nor any of its affiliates will use
the name of the Trust in any publicly disseminated materials, including sales
literature, in any manner without the prior written consent of the Trust (which
will not be unreasonably withheld); PROVIDED, HOWEVER, that the Trust hereby
approves all lawful uses of its name in any required regulatory filings of the
Distributor which merely refer in accurate terms to the appointment of the
Distributor hereunder, or which are required by applicable law, regulations or
otherwise by the SEC, FINRA, or any state securities authority.
10.13 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 Trust hereunder. Distributor will notify the Trust 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 Trust's rights
hereunder. Such notification will include the date of change and the reason or
reasons therefor. Distributor will notify the Trust of any material claims
against it, whether or not covered by insurance that may materially and
adversely affect the Trust's rights hereunder.
*****
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THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI INVESTMENTS DISTRIBUTION CO.
IN WITNESS WHEREOF, the Trust and Distributor have each duly executed this
Agreement, as of the day and year above written.
XXXXXX DIVERSIFIED OPPORTUNITIES SEI INVESTMENTS DISTRIBUTION CO.
FUND
By: /s/ Xxxxxx X. Xxxx
By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxx
Name: Xxxxxxx Xxxxxxx Title: CFO & COO
Title: President
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SEI 187460v1
THIS DOCUMENT CONSTITUTES CONFIDENTIAL INFORMATION OF
SEI INVESTMENTS DISTRIBUTION CO.
SCHEDULE A
LIST OF SERVICES
INDUSTRY AGREEMENT SERVICES
o Negotiate and execute sub-distribution agreements with broker/dealers
and/or banks on behalf of the Trust
o Coordinate and execute operational agreements (networking agreements,
NSCC redemption agreements, etc. )
o Coordinate and execute 401(k) agreements and shareholder service
agreements with various record-holders and other financial
intermediaries
o Coordinate and execute service agreements with Supermarkets (e. g.
Schwab, Fidelity, etc. ) and other financial intermediaries
FINRA REVIEW
o Review and approve all collateral fund marketing materials to ensure
compliance with SEC & FINRA advertising rules
o Conduct FINRA filing of materials
o Respond to FINRA comments on marketing materials
o Review and file Internet sites according to FINRA policies
o Provide client with copy of SEI's SEC & FINRA Marketing Materials
Guidebook
INVESTOR SERVICES
o Obtain toll free lines and call prompters for the Trust
o Provide servicing team, consisting of FINRA-licensed representatives,
as well as Interactive Voice Response Support to handle investor
service calls
o Respond to shareholder questions regarding the Trust
o Respond to shareholder account inquiries
o Respond to shareholder questions regarding financial statements and
performance information
o Submit shareholder requests for literature (only if client chooses
fulfillment services)
o Provide standard management reports on statistics around inbound
shareholder calls
o Conduct routine Q/A testing on all shareholder services
representatives
E-MAIL RESPONSE SUPPORT
o Receive inbound email into messaging database and generate
auto-response verifying receipt.
o Assess and categorize each inbound email request or question.
o Process appropriate email responses to include both "canned" and
"free form" responses.
o Provide response team consisting of FINRA-licensed reps.
o Submit requests for literature (only if client chooses fulfillment
services and website template)
o Provide standard management reports on statistics around demographics,
response rates, and standards.
o Provide Q/A review of response, conducted by licensed Principal.
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SEI INVESTMENTS DISTRIBUTION CO.
