DISTRIBUTION AGREEMENT
ARK FUNDS
THIS AGREEMENT is made as of this 1st day of November, 1995, between ARK
FUNDS (the "Fund"), a Massachusetts business trust, and SEI Financial
Services Company (the "Distributor"), a Pennsylvania corporation.
WHEREAS, the Fund is registered as an investment company with the
Securities and Exchange Commission (the "SEC") under the Investment Company
Act of 1940, as amended (the "1940 Act"), and its shares are registered with
the SEC under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Fund and Distributor hereby agree as follows:
ARTICLE 1. Sale of Shares. The Fund grants to the Distributor the
exclusive right to sell shares of beneficial interest (the"Shares") of the
portfolios (the "Portfolios") of the Fund at the net asset value per Share,
plus any applicable sales charges in accordance with the current prospectus,
as agent and on behalf of the Fund, 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").
ARTICLE 2. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor agrees to use all reasonable
efforts, consistent with its other business, in connection with the
distribution of Shares of the Fund; provided, however, that the Distributor
shall not be prevented from entering into like arrangements 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
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 when it
determines it would be uneconomical for it to do so nor obligate the
Distributor to sell any particular number of Shares.
ARTICLE 3. Authorized Representations. The Distributor is not
authorized by the Fund to give any information or to make any representations
other than those contained in the current registration statements and
prospectuses of the Fund filed with the SEC or contained in Shareholder
reports or other material that may be prepared by or on behalf of the Fund
for the Distributor's use. The Distributor may prepare and distribute sales
literature and other material as it may deem appropriate.
ARTICLE 4. Registration of Shares. The Fund agrees that it will take all
action necessary to register Shares under the federal and state securities
laws so that there will be available for sale the number of Shares the
Distributor may reasonably be expected to sell and to pay all fees associated
with said registration. The Fund shall make available to the Distributor such
number of copies of its currently effective prospectus and statement of
additional information as the Distributor may reasonably request. The Fund
shall 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 Fund.
ARTICLE 5. Compensation. As compensation for providing the services
under this Agreement:
(a) The Distributor shall receive from the Fund:
(1) all distribution or service fees, as applicable, at the
rate and under the terms and conditions set forth in each
distribution or shareholder services plan adopted with
respect to a particular class of Shares of a Portfolio, as
such plans may be amended from time to time, and subject to
any further limitations on such fees as the Board of Trustees
of the Fund may impose;
(2) all contingent deferred sales charges ("CDSCs") imposed on
redemptions of any class of Shares of a Portfolio on the terms
and subject to such waivers as are described in the Fund's
current registration statement and prospectuses, as amended
from time to time, or as otherwise required pursuant to
applicable law; and
(3) all front-end sales charges, if any, imposed on purchases of
any class of Shares of a Portfolio on the terms and subject to
such waivers as described in the Fund's current registration
statement and prospectuses, as amended from time to time. The
Distributor, or brokers, dealers and other financial
institutions and intermediaries that have entered into
appropriate agreements with the Distributor, may collect the
gross proceeds derived from the sale of such Shares, remit the
net asset value thereof to the Fund upon receipt of the
proceeds and retain the applicable sales charge.
(b) The Distributor may reallow any or all of the distribution or
service fees, contingent deferred sales charges and front-end sales
charges to such brokers, dealers and other financial institutions
and intermediaries as the Distributor may from time to time
determine.
ARTICLE 6. Indemnification of Distributor. The Fund agrees to
indemnify and hold harmless the Distributor and each of its directors and
officers and each person, if any, who controls the 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 the
registration statement, prospectus, Shareholder reports or other information
filed or made public by the Fund (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 made not
misleading. However, the Fund does not agree to indemnify the Distributor or
hold it harmless to the extent that the statement or omission was made in
reliance upon, and in conformity with, information furnished to the Fund by
or on behalf of the Distributor.
In no case (i) is the indemnity of the Fund to be deemed to protect the
Distributor or any other person indemnified against any liability to the Fund
or its Shareholders to which the 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 Fund to be liable
to the Distributor under the indemnity agreement contained in this paragraph
with respect to any claim made against the Distributor or any person
indemnified unless the Distributor or other person shall have notified the Fund
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 Distributor or such other person (or after
the Distributor or the person shall have received notice of service on any
designated agent). However, failure to notify the Fund of any claim shall
not relieve the Fund from any liability which it may have to the Distributor
or any person against whom such action is brought otherwise than on account
of its indemnity agreement contained in this paragraph.
The Fund 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 Fund elects
to assume the defense of any such claim, the defense shall be conducted by
counsel chosen by the Fund and satisfactory to the indemnified defendants in
the suit whose approval shall not be unreasonably withheld. In the event
that the Fund 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 Fund 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 Fund agrees to notify the Distributor promptly of the commencement of
any litigation or proceedings against it or any of its officers or Trustees
in connection with the issuance or sale of any of its Shares.
ARTICLE 7. Indemnification of Fund. The Distributor covenants and
agrees that it will indemnify and hold harmless the Fund and each of its
Trustees and officers and each person, if any, who controls the Fund 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) arising by reason
of any person acquiring any Shares, and alleging a wrongful act of the
Distributor or any of its employees or alleging that the registration statement,
prospectus, Shareholder reports or other information filed or made public by
the Fund (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 Fund by or on behalf of the Distributor.
In no case (i) is the indemnity of the Distributor in favor of the Fund
or any other person indemnified to be deemed to protect the Fund or any other
person against any liability to which the Fund 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 the
Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the 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 Fund or upon any person (or
after the Fund or such person shall have received notice of service on any
designated agent). However, failure to notify the Distributor of any claim
shall not relieve the Distributor from any liability which it may have to the
Fund or any person against whom the action is brought otherwise than on
account of its indemnity agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense, in
the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and
satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that the 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 the
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.
The Distributor agrees to notify the Fund promptly of the commencement of
any litigation or proceedings against it in connection with the issue and
sale of any of the Funds' Shares.
ARTICLE 8. Effective Date. This Agreement shall be effective upon its
execution, and unless terminated as provided, shall continue in force for two
years from the effective date and thereafter from year to year, provided that
such annual continuance is approved by (i) either the vote of a majority of
the Trustees of the Fund, or the vote of a majority of the outstanding voting
securities of the Fund, and (ii) the vote of a majority of those Trustees of
the Fund who are not parties to this Agreement or any plan adopted pursuant
to Rule 12b-1 under the 1940 Act or interested persons of any such party
("Qualified Trustees"), 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 the
Distributor, by a vote of a majority of Qualified Trustees or by vote of a
majority of the outstanding voting securities of the Fund upon not less than
sixty days prior written notice to the other party.
ARTICLE 9. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party
giving notice: if to the Fund, at 000 X. Xxxxxxxxxx Xxxx, Xxxxx,
XX 00000-0000, and if to the Distributor, at 000 Xxxx Xxxxxxxxxx Xxxx,
Xxxxx, XX 00000-0000.
ARTICLE 10. Limitation of Liability. A copy of the Declaration of Trust
of the Fund is on file with the Secretary of State of the Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trustees of the Fund as Trustees and not individually and that
the obligations of this instrument are not binding upon any of the Trustees,
officers or Shareholders of the Fund individually but binding only upon the
assets and property of the Fund.
ARTICLE 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts, without
regard to the conflict of laws, provisions thereof, and the applicable
provisions of the 1940 Act. To the extent that the applicable laws of the
Commonwealth of Massachusetts, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control.
ARTICLE 12. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
IN WITNESS, the Fund and Distributor have each duly executed this
Agreement, as of the day and year above written.
ARK FUNDS
By: /s/
Xxxxxxx Xxxxx
Vice President
Attest: /s/
Xxxxx Xxxxxxxx
SEI FINANCIAL SERVICES COMPANY
By: /s/
Xxxxxxx X. Xxxxxxx
Vice President
Attest: /s/
Xxxxxxxx Xxxxxx
