EXHIBIT (E)(1)
DISTRIBUTION AGREEMENT
Distribution Agreement made this 30th day of September, 2005, by and
between The State Street Institutional Investment Trust, a Massachusetts trust
(the "Trust"), and ALPS Distributors, Inc., a Colorado 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" and collectively the "Funds"), each investing primarily in interests of
a portfolio of the State Street Master Trust, having filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form N-1A
under the Securities Act of 1933, as amended (the "1933 Act"), and the
Investment Company Act of 1940, as amended;
WHEREAS, the Trust desires to retain the services of the Distributor in
connection with the promotion and distribution of the shares of each Fund (the
"Shares");
WHEREAS, the Board of Trustees of the Trust has adopted a plan of
distribution (the "12b-1 Plan") pursuant to Rule 12b-1 under the 1940 Act with
respect to each Fund and may make payments to the Distributor pursuant to such
12b-1 Plan, subject to and in accordance with the terms and conditions thereof
and any related agreements;
WHEREAS, the Distributor is a registered broker-dealer under the Securities
Exchange Act of 1934, as amended (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 the same 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 and the 1940 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;
d. All capitalized terms used but not defined in this Agreement shall have
the meanings ascribed to such terms in the Registration Statement and the
Prospectus.
3. Duties of the Distributor.
(a) The Trust grants to the Distributor the right to sell the Shares as
agent on behalf of each Fund, during the term of this Agreement, subject to the
registration requirements of the 1933 Act and the 1940 Act and of the laws
governing the sale of securities in the various states ("Blue Sky Laws"), under
the terms and conditions set forth in this Agreement. The Distributor shall have
the right to sell, as agent on behalf of each Fund, the Shares covered by the
registration statement, prospectus and statement of additional information for
the Trust then in effect under the 1933 Act and the 0000 Xxx.
(b) The Distributor agrees to act as agent of the Trust with respect to the
continuous distribution of Shares of each Fund as set forth in the Registration
Statement and in accordance with the provisions thereof. The Distributor further
agrees as follows: (a) the Distributor shall generate and transmit confirmations
of Share purchase order acceptances to the purchaser; (b) the Distributor shall
deliver copies of the prospectus, included in the Registration Statement, to
purchasers of such Shares and upon request the Statement of Additional
Information; and (c) the Distributor shall maintain telephonic, facsimile and/or
access to direct computer communications links with the Transfer Agent.
(c) The rights granted to the Distributor shall be nonexclusive in that the
Trust reserves the right to sell Shares to investors on applications received
and accepted by the Trust.
(d) The Distributor agrees to administer the Rule 12b-1 Plan on behalf of
the Trust. The Distributor shall, at its own expense, set up and maintain a
system of recording and payments for fees and reimbursement of expenses
disseminated pursuant to this Agreement and any other related agreements under
the Funds' Rule 12b-1 Plan and shall, pursuant to the 1940 Act, report such
payment activity under the Rule 12b-1 Plan to the Trust at least quarterly.
(e) 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.
(f) Except as otherwise noted in the Registration Statement and Prospectus,
the offering price for all Shares will be the aggregate net asset value of the
Shares of the relevant Fund, as determined in the manner described in the
Registration Statement and Prospectus.
(g) If and whenever the determination of net asset value is suspended and
until such suspension is terminated, no further orders for Shares will be
processed by the Distributor except such unconditional orders as may have been
placed with the Distributor before it had knowledge of the suspension. In
addition, the Trust reserves the right to suspend sales and Distributor's
authority to process orders for Shares on behalf of the Trust, upon due notice
to the Distributor, 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.
2
(h) 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.
(i) The Board of Trustees shall approve the form of any Investor Services
Agreement to be entered into by the Distributor.
(j) At the request of the Trust, the Distributor shall enter into
agreements in the form specified by the Trust (each a "Participant Agreement")
with participants in the system for book-entry of The Depository Trust Company
and the NSCC as described in the Prospectus.
(k) The Distributor shall ensure that all direct requests for Prospectuses
and Statements of Additional of Information are fulfilled. The Distributor will
generally make it known in the brokerage community that prospectuses and
statements of additional information are available, including by (i) making such
disclosure in all marketing and advertising materials prepared and/or filed by
the Distributor with the NASD, and (ii) as may otherwise be required by the
Commission.
(l) 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 to issue Shares of each Fund and to request The
Depository Trust Company to record on its books the ownership of such Shares in
accordance with the book-entry system procedures described in the Prospectus in
such amounts as the Distributor has requested through the Transfer Agent in
writing or by other means of data transmission, as promptly as practicable after
receipt by the Trust of the requisite purchase price and acceptance of such
order, upon the terms described in the Registration Statement. The Trust may
reject any order for Shares or stop all receipts of such orders at any time upon
reasonable notice to the Distributor, in accordance with the provisions of the
Prospectus.
(b) 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
that 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 Shares of the Trust are authorized for sale and shall
promptly notify the Distributor of any change in this information. The
Distributor shall not be liable for damages resulting from the sale of Shares in
authorized jurisdictions where the Distributor had no information from the Trust
that such sale or sales were unauthorized at the time of such sale or sales.
3
(c) 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. Fees and Expenses.
(a) The Trust will, with respect to each Fund, pay to the Distributor all
fees and expenses pursuant to the terms of the Rule 12b-1 Plan in effect for
each respective Fund.
(b) The Distributor will bear the following costs and expenses relating to
the distribution of Shares of the Funds: (a) the costs of maintaining the
records required of a broker-dealer registered under the 1934 Act; (b) the
expenses of maintaining its registration or qualification as a dealer or broker
under federal or state laws; (c) the expenses incurred by the Distributor in
connection with normal (non-expedited) NASD filing fees; and (d) all other
expenses incurred in connection with the distribution services contemplated
herein, except as specifically provided in this Agreement.
(c) The Distributor shall pay, from the fees received by it from the Funds
pursuant to the Rule 12b-1 Plan, all fees and make reimbursement of expenses,
pursuant to and in accordance with any and all Investor Services Agreements, as
approved by the Board of Trustees of the Trust, as set forth in Section 3 of
this Agreement. Further, the Distributor will pay, from the fees received by it
from the Funds pursuant to the Rule 12b-1 Plan, all fees with respect to
expedited NASD filing fees.
6. Indemnification.
(a) The Trust agrees to indemnify and hold harmless the Distributor and
each of the directors, officers, agents and employees and any person who
controls the Distributor within the meaning of Section 15 of the 1933 Act (any
of the Distributor, its 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 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 therein or necessary in
order to make the statements therein (and in the case of the Prospectus, in
light of the circumstances under which they were made) 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
4
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 satisfactory 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 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.
5
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 Colorado 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 and (iv) it is registered as a broker-dealer under the 1934
Act and is a member of the NASD.
(b) The Trust represents and warrants that (i) it is duly organized as a
Massachusetts trust and is and at all times will remain duly authorized to carry
out its obligations as contemplated herein; (ii) it is registered as an
investment company under the 1940 Act; (iii) the execution, delivery and
performance of this Agreement are within its power and have been duly authorized
by all necessary action; and (iv) 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.
8. Duration, Termination and Amendment.
(a) This Agreement shall be effective on the date set forth above and
unless terminated as provided herein, shall continue for one year 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") and, if a plan under Rule 12b-1 under the 1940 Act is in
effect, by the vote of those Trustees who are not "interested persons" of the
Trust and who are not parties to such plan or this Agreement and have no
financial interest in the operation of such plan or in any agreements related to
such plan, 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) During such period as the Distributor receives compensation pursuant to
the 12b-1 Plan, and this Agreement constitutes a Rule 12b-1 Plan related
agreement, (i) any material amendment to this Agreement requires the approval
provided for in paragraph (a) with respect to annual renewals of this
6
Agreement, and (ii) any amendment that materially increases the amount to be
spent for distribution services requires the additional approval of the majority
of the Trust's outstanding voting securities (as defined in the 0000 Xxx) of
each affected Fund; and (iii) the selection and nomination of those Trustees who
are not "interested persons" (as defined in the 0000 Xxx) of the Trust shall be
committed to the discretion of the Trustees of the Trust who are not such
"interested persons" of the Trust;
(c) 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: ALPS Distributors, Inc., 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, XX
00000, Attn.: General Counsel, fax: (000) 000-0000; if to the Trust: State
Street Bank and Trust Company, Attn.: Fund Administration Xxxxx Xxxxxxxxxx, X.X.
Xxx 0000, Xxxxxx, XX 00000-0000 fax: (000) 000-0000.
10. Limitation of Liability. The Distributor is expressly put on notice of the
limitation of shareholder liability as set forth in the Declaration of Trust of
the Trust and agrees that the obligations assumed by the Trust under this
contract shall be limited in all cases to the Trust and its assets. The
Distributor shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust, nor shall the Distributor seek
satisfaction of any such obligation from the Trustees or any individual Trustee
of the Trust. The Distributor understands that the rights and obligations of
each series of shares of the Trust under the Declaration of Trust are separate
and distinct from those of any and all other series.
11. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts, without giving
effect to the choice of laws provisions thereof.
12. 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.
13. 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.
14. Insurance. The Distributor will maintain at its expense an errors and
omissions insurance policy that covers services by the Distributor hereunder.
15. Segregation of Fees and Expenses. Amounts paid by each Fund to the
Distributor under its Rule 12b-1 Plan either for distribution related services
or shareholder services shall not be used to pay for the distribution of Shares
of, or shareholder servicing in respect of, any other Fund. However, fees under
the Rule 12b-1 Plan attributable to the Trust as a whole shall be allocated to
each Fund according to the method adopted by the Trust's Board of Trustees. Fees
attributable to the Trust as a whole shall include any amounts payable under the
Rule 12b-1 Plan to the Distributor for its services rendered hereunder. The
Distributor's allocation of such Rule 12b-1 Plan fees shall be subject to review
by the Trust's Board of Trustees.
7
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.
THE STATE STREET INSTITUTIONAL
INVESTMENT TRUST
By: /s/ Xxxxx. Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: President
ALPS DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. May
------------------------------------
Name: Xxxxxx X. May
Title: Managing Director
8
Annex I
FUND
State Street Equity 500 Index Fund (Investor, Service and Class R Shares)
State Street Equity 400 Index Fund
State Street Equity 2000 Index Fund
State Street Aggregate Bond Index Fund
State Street Money Market Fund
State Street U.S. Government Money Market Fund
As of December 31, 2005
9
