Exhibit 23(e)
SA FUNDS - INVESTMENT TRUST
DISTRIBUTION AGREEMENT
Distribution Agreement made this ___ day of ____ 1999, by and between SA
Funds - Investment Trust, a Delaware business trust (the "Trust"), and RWB
Securities Inc., a Maryland corporation (the "Distributor").
WHEREAS, the Trust is a registered open-end management investment company
organized as a series trust offering a number of portfolios of securities (each,
a "Fund"), having filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-1A under the Securities Act of
1933 (the "1933 Act") and the Investment Company Act of 1940, as amended;
WHEREAS, the Trust desires to retain the Distributor to act as the
distributor with respect to the issuance and distribution of units of beneficial
interest ("Shares") of each Fund;
WHEREAS, the Distributor is a registered broker-dealer under the Securities
Exchange Act of 1934 (the "1934 Act") and a member of the National Association
of Securities Dealers ("NASD"); and
WHEREAS, the Distributor desires to provide such services to the Trust;
NOW THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. APPOINTMENT. The Trust hereby appoints the Distributor as the exclusive
distributor for Shares of each Fund listed in Annex I hereto, as may be amended
by the parties from time to time, on the terms and for the period set forth in
this Agreement and subject to the registration requirements of the 1933 Act and
of the laws governing the sale of securities in the various states, and the
Distributor hereby accepts such appointment and agrees to act in such capacity
hereunder.
2. DEFINITIONS. Wherever they are used herein, the following terms have the
following respective meanings:
a. "1940 Act" means the Investment Company Act of 1940 and the rules and
regulations thereunder as amended from time to time;
b. "Prospectus" means the Prospectus and Statement of Additional
Information constituting parts of the Registration Statement of the Trust under
the 1933 Act as such Prospectus and Statement of Additional Information may be
amended or supplemented and filed with the Commission from time to time;
c. "Registration Statement" means the registration statement most
recently filed from time to time by the Trust with the Commission and effective
under the 1933 Act and the 1940 Act, as such registration statement is amended
by any amendments thereto at the time in effect.
3. DUTIES OF THE DISTRIBUTOR.
(a) The Trust grants to the Distributor the exclusive right to accept or
reject all orders for purchases of Shares of each Fund. The Distributor shall
issue or cause the Trust's transfer agent or
shareholder service agent to issue confirmations of all accepted purchase orders
and to transmit a copy of such confirmations to the Trust. The Trust
acknowledges that the Distributor shall not be obligated to accept any certain
number of orders for Shares and nothing herein shall prevent the Distributor
from entering into like distribution arrangements with other investment
companies.
(b) The Distributor agrees to act as agent of the Trust with respect to
the distribution of Shares of each Fund as set forth in the Registration
Statement and in accordance with the provisions thereof.
(c) (i) The Distributor agrees to use its best efforts to encourage and
promote the sale of Shares of the Funds.
(ii) The Distributor shall, at its own expense, execute selected
dealer agreements ("Selected Dealer Agreements") with registered
broker-dealers and other eligible entities providing for the purchase of
Shares of the Funds in the form and as approved by the Board of Trustees
of the Trust, providing for activities which the Distributor deems
reasonable and appropriate and which are primarily intended to result in
the sale of such Shares. Pursuant to this Agreement, the Distributor
shall facilitate the coordination of the performance of any marketing
and promotional services, including advertising; the development and
implementation of any marketing plan; and clearing and filing all
advertising, sales, marketing and promotional materials of the Funds
with the NASD.
(d) All activities by the Distributor and its agents and employees which
are primarily intended to result in the sale of Shares shall comply with the
Registration Statement and Prospectus, the instructions of the Board of Trustees
of the Trust and all applicable laws, rules and regulations including, without
limitation, all rules and regulations made or adopted pursuant to the 1940 Act
by the Commission or any securities association registered under the 1934 Act,
including the NASD.
(e) Except as otherwise noted in the Registration Statement and
Prospectus, the offering price for all Shares will be the net asset value of the
Shares of the relevant Fund, as determined in the manner described in the
Registration Statement and Prospectus.
(f) If and whenever the determination of net asset value is suspended and
until such suspension is terminated, no further orders for Shares will be
accepted by the Distributor. In addition, the Trust reserves the right to
suspend sales and Distributor's authority to accept orders for Shares on behalf
of the Trust if, in the judgment of the Trust, it is in the best interests of
the Trust to do so. Suspension will continue for such period as may be
determined by the Trust.
(g) The Distributor is not authorized by the Trust to give any information
or to make any representations other than those contained in the Registration
Statement or Prospectus or contained in shareholder reports or other material
that may be prepared by or on behalf of the Trust for the Distributor's use.
The Distributor shall be entitled to rely on and shall not be responsible in any
way for information provided to it by the Trust and its respective service
providers and shall not be liable or responsible for the errors and omissions of
such service providers, provided that the foregoing shall not be construed to
protect the Distributor against any liability to the Trust or the Trust's
shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
under this Agreement.
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(h) The Board of Trustees shall approve the form of any Soliciting Dealer
Agreement to be entered into by the Distributor.
(i) The Distributor shall ensure that all direct requests for Prospectuses
and Statements of Additional of Information are fulfilled.
(j) The Distributor agrees to make available, at the Trust's request, one
or more members of its staff to attend Board meetings of the Trust in order to
provide information with regard to the ongoing distribution process and for such
other purposes as may be requested by the Board of Trustees of the Trust.
4. DUTIES OF THE TRUST.
(a) The Trust agrees that it will take all action necessary to register an
indefinite number of shares under the 1933 Act. The Trust will make available
to the Distributor such number of copies of its then currently effective
Prospectus as the Distributor may reasonably request. The Trust will furnish to
the Distributor copies of all information, financial statements and other papers
which the Distributor may reasonably request for use in connection with the
distribution of Shares. The Trust shall keep the Distributor informed of the
jurisdictions in which the Trust has effected notice filings of shares of the
Trust for sale under the securities laws thereof.
(b) The Trust represents to the Distributor that the Registration
Statement and Prospectus filed by the Trust with the Commission with respect to
the Trust have been prepared in conformity with the requirements of the 1933
Act, the 1940 Act and the rules and regulations of the Commission thereunder.
The Trust will notify the Distributor promptly of any amendment to the
Registration Statement or supplement to the Prospectus and any stop order
suspending the effectiveness of the Registration Statement.
5. EXPENSES.
(a) The Distributor will bear the following costs and expenses relating to
the distribution of Shares of the Funds: (a) the costs of processing and
maintaining records of purchases of Shares; (b) the costs of maintaining the
records required of a broker-dealer registered under the 1934 Act; (c) the
expenses of maintaining its registration or qualification as a dealer or broker
under federal or state laws; (d) the expenses incurred by the Distributor in
connection with normal (non-expedited) NASD filing fees; (e) the cost of
printing and mailing of the Prospectus (other then those furnished to existing
shareholders) and any sales literature used by the Distributor; and (f) all
other expenses incurred in connection with the distribution services
contemplated herein, except as specifically provided in this Agreement.
6. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless the Distributor and
any soliciting dealer that enters into a Soliciting Dealer Agreement with the
Distributor, which provides for such indemnification, in the form approved by
the Board of Trustees (each an "Indemnified Dealer") and each of the directors,
officers, agents and employees and any person who controls the Distributor or
the Indemnified Dealer within the meaning of Section 15 of the 1933 Act (any of
the Distributor, any Indemnified Dealer, their officers, agents, employees and
directors or such control persons, for purposes of this paragraph, an
"Indemnitee") against any loss, liability, claim, damages or expense (including
the
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reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith) arising out of or based upon the claim that the Registration
Statement, Prospectus, shareholder reports or other information filed or made
public by the Trust (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading under the 1933 Act, or
any other statute or the common law. However, the Trust does not agree to
indemnify the Distributor or hold it harmless to the extent that the statement
or omission was made in reliance upon, and in conformity with information
furnished to the Trust by or on behalf of the Distributor. The Trust will also
not indemnify any Indemnitee with respect to any untrue statement or omission
made in the Registration Statement or Prospectus that is subsequently corrected
in such document (or an amendment thereof or supplement thereto) if a copy of
the Prospectus (or such amendment or supplement) was not sent or given to the
person asserting any such loss, liability, claim, damage or expense at or before
the written confirmation to such person in any case where such delivery is
required by the 1933 Act and the Trust had notified the Distributor of the
amendment or supplement prior to the sending of the confirmation. In no case
(i) is the indemnity of the Trust in favor of any Indemnitee to be deemed to
protect the Indemnitee against any liability to the Trust or its shareholders to
which the Indemnitee would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Trust to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against any
Indemnitee unless the Indemnitee shall have notified the Trust in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon Indemnitee (or after Indemnitee shall have received notice of
service on any designated agent). However, failure to notify the Trust of any
claim shall not relieve the Trust from any liability which it may have to any
Indemnitee against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Trust shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any claims, but if the Trust elects
to assume the defense, the defense shall be conducted by counsel chosen by it
and satsfactory to Indemnitee, defendant or defendants in the suit. In the
event the Trust elects to assume the defense of any suit and retain counsel,
Indemnitee, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the Trust does not
elect to assume the defense of any suit, it will reimburse the Indemnitee,
defendant or defendants in the suit, for the reasonable fees and expenses of any
counsel retained by them. The Trust agrees to notify the Distributor and any
Indemnified Dealer promptly of the commencement of any litigation or proceedings
against it or any of its officers or trustees in connection with the issuance or
sale of any of the Shares.
(b) The Distributor agrees to indemnify and hold harmless the Trust and
each of its Trustees and officers and any person who controls the Trust within
the meaning of Section 15 of the 1933 Act (for purposes of this paragraph, the
Trust and each of its Trustees and officers and its controlling persons are
collectively referred to as the "Trust Affiliates") against any loss, liability,
claim, damages or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages or expense and reasonable
counsel fees incurred in connection therewith) which the Trust Affiliate may
incur under the 1933 Act or any other statute or common law, but only to the
extent that such loss, liability, claim, damages or expense shall arise out of
or be based upon (i) the allegation of any wrongful act of the Distributor or
any of its employees or (ii) allegation that the Registration Statement,
Prospectus, shareholder reports or other information filed or made public by the
Trust (as from time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or necessary in
order to make the statements not misleading, insofar as the statement or
omission was made in reliance upon, and in conformity with information furnished
to the Trust by or on
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behalf of the Distributor. In no case (i) is the indemnity of the Distributor
in favor of any Trust Affiliate to be deemed to protect any Trust Affiliate
against any liability to the Trust or its security holders to which such Trust
Affiliate would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement, or (ii)
is the Distributor to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against any Trust Affiliate unless the
Trust Affiliate shall have notified the Distributor in writing of the claim
within a reasonable time after the summons or the first written notification
giving information of the nature of the claim shall have been served upon the
Trust Affiliate (or after the Trust Affiliate shall have received notice of
service on any designated agent). However, failure to notify the Distributor of
any claim shall not relieve the Distributor from any liability which it may have
to the Trust Affiliate against whom the action is brought otherwise than on
account of its indemnity agreement contained in this paragraph. The Distributor
shall be entitled to participate at its own expense in the defense or, if it so
elects, to assume the defense of any suit brought to enforce the claim, but if
the Distributor elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Trust, its officers and Board and
to any controlling person or persons, defendant or defendants in the suit. In
the event that Distributor elects to assume the defense of any suit and retain
counsel, the Trust or controlling person or persons, defendant or defendants in
the suit, shall bear the fees and expenses of any additional counsel retained by
them. If the Distributor does not elect to assume the defense of any suit, it
will reimburse the Trust, its officers and Board or controlling person or
persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Distributor agrees to notify the
Trust promptly of the commencement of any litigation or proceedings against it
in connection with the issuance and sale of any of the Shares.
(c) No indemnified party shall settle any claim against it for which it
intends to seek indemnification from the indemnifying party, under the terms of
section 6(a) or 6(b) above, without the prior written notice to and consent from
the indemnifying party, which consent shall not be unreasonably withheld. No
indemnified or indemnifying party shall settle any claim unless the settlement
contains a full release of liability with respect to the other party in respect
of such action. This section 6 shall survive the termination of this Agreement.
7. REPRESENTATIONS.
(a) The Distributor represents and warrants that (i) it is duly organized
as a [ ]corporation and is and at all times will remain duly authorized and
licensed to carry out its services as contemplated herein; (ii) the execution,
delivery and performance of this Agreement are within its power and have been
duly authorized by all necessary action; and (iii) its entering into this
Agreement or providing the services contemplated hereby does not conflict with
or constitute a default or require a consent under or breach of any provision of
any agreement or document to which the Distributor is a party or by which it is
bound.
(b) The Trust represents and warrants that (i) it is duly organized as a
Delaware business trust and is and at all times will remain duly authorized to
carry out its obligations as contemplated herein; (ii) the execution, delivery
and performance of this Agreement are within its power and have been duly
authorized by all necessary action; and (iii) its entering into this Agreement
does not conflict with or constitute a default or require a consent under or
breach of any provision of any agreement or document to which the Trust is a
party or by which it is bound.
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8. DURATION, TERMINATION AND AMENDMENT.
(a) This agreement shall become effective on the effective date of the
Registration Statement and unless terminated as provided herein, shall continue
for two years from its effective date, and thereafter from year to year,
provided such continuance is approved annually by the vote of a majority of the
Board of Trustees, and by the vote of those Trustees who are not "interested
persons" of the Trust (the "Independent Trustees"), cast in person at a meeting
called for the purpose of voting on the approval. This Agreement may be
terminated at any time, without the payment of any penalty, as to each Fund (i)
by vote of a majority of the Independent Trustees or (ii) by vote of a majority
(as defined in the 0000 Xxx) of the outstanding voting securities of the Fund,
on at least sixty (60) days prior written notice to the Distributor. In
addition, this Agreement may be terminated at any time by the Distributor upon
at least sixty (60) days prior written notice to the Trust. This Agreement
shall automatically terminate in the event of its assignment. As used in this
paragraph, the terms "assignment" and "interested persons" shall have the
respective meanings specified in the 1940 Act.
(b) No provision of this Agreement may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against which
an enforcement of the change, waiver, discharge or termination is sought.
9. NOTICE. Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Distributor: RWB Securities Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx,
Xxxxxxxxxx 00000; if to the Trust: RWB Funds, 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxx, Xxxxxxxxxx 00000.
10. CHOICE OF LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, without giving effect to
the choice of laws provisions thereof.
11. COUNTERPARTIES. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. SEVERABILITY. If any provisions of this Agreement shall be held or made
invalid, in whole or in part, then the other provisions of this Agreement shall
remain in force. Invalid provisions shall, in accordance with this Agreement's
intent and purpose, be amended, to the extent legally possible, by valid
provisions in order to effectuate the intended results of the invalid
provisions.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first set forth
above.
SA FUNDS - INVESTMENT TRUST
By:
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Name:
-------------------------
Title:
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RWB SECURITIES INC.
By:
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Name:
-------------------------
Title:
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ANNEX I
SA Fixed Income Fund - Class S Shares
SA U.S. Market Fund - Class S Shares
SA U.S. HBtM Fund - Class S Shares
SA U.S. Small Fund - Class S Shares
SA International HBtM Fund - Class S Shares
SA International Small Fund Class S Shares
SA Fixed Income Fund - Class I Shares
SA U.S. Fund - Class I Shares
SA U.S. HBtM Fund - Class I Shares
SA U.S. Small Fund - Class I Shares
SA International HBtM Fund - Class I Shares
SA International Small Fund - Class I Shares
As of ____________, 1999
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