Exhibit 99.B6(c)
DISTRIBUTION AGREEMENT
between
PBHG ADVISOR FUNDS, INC.
(CLASS I SHARES)
and
PBHG FUND DISTRIBUTORS
THIS AGREEMENT made as of this 1st day of April, 1998, by and between PBHG
ADVISOR FUNDS, INC., a Maryland corporation (the "Company"), with respect to the
Class I shares ("Shares") of each portfolio of the Company set forth on Schedule
A to this agreement (the "Portfolios" and each individually a "Portfolio"), and
PBHG FUND DISTRIBUTORS, a Pennsylvania business trust (the "Distributor").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and other good
and valuable consideration, the receipt whereof is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Appointment of Distributor. The Company hereby appoints the Distributor
as its exclusive agent for the sale of Shares to the public directly and through
investment dealers and other financial institutions in the United States and
throughout the world in accordance with the terms of the current prospectus
applicable thereto.
2. Sales of Shares. The Company shall not sell any Shares except through
the Distributor and under the terms and conditions set forth in paragraph 4
below. Notwithstanding the provisions of the foregoing sentence, however:
(A) The Company may issue Shares otherwise than through the Distributor in
connection with the payment or reinvestment of dividends or distributions;
(B) The Company may issue Shares of a Portfolio to any other investment
company or personal holding company, or to the shareholders thereof, in exchange
for all or a majority of the shares or assets of any such company; and
(C) The Company shall have the right to specify minimum amounts for initial
and subsequent orders for the purchase of Shares of a Portfolio.
3. Acceptance of Appointment. The Distributor hereby accepts appointment as
exclusive agent for the sale of Shares and agrees that it will use its best
efforts to sell Shares; provided, however, that:
(A) The Distributor may, and when requested by the Company on behalf of any
Portfolio shall, suspend its efforts to effectuate sales of Shares of such
Portfolio at any time when, in the opinion of the Distributor or of the Company,
no sales should be made because of market or other economic considerations or
abnormal circumstances of any kind;
(B) The Company may withdraw the offering of Shares of any Portfolio (i) at
any time with the consent of the Distributor, or (ii) without such consent when
so required by the provisions of any statute or of any order, rule or regulation
of any governmental body having jurisdiction; and
(C) The Distributor, as agent, does not undertake to sell any specific
amount of Shares.
4. Offering and Redemption of Shares.
(A) The public offering price of Shares shall be the net asset value per
share of Shares of the applicable Portfolio as set forth in the prospectus. Net
asset value per share shall be determined in accordance with the provisions
applicable to such Portfolio in the then current prospectus and statement of
additional information with respect to Shares.
(B) The Company shall redeem Shares from shareholders in accordance with
the terms set forth from time to time in the current prospectus and statement of
additional information with respect to Shares. The price to be paid to a
shareholder to redeem Shares shall be equal to the net asset value of Shares
being redeemed.
5. Distributor as Agent. The Distributor shall act as an agent of the
Company in connection with the sale and redemption of Shares. Except with
respect to such sales and redemptions, the Distributor shall act as principal in
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all matters relating to the promotion of the sale of Shares and shall enter into
all of its own engagements, agreements and contracts as principal on its own
account. The Distributor shall enter into agreements with investment dealers and
financial institutions selected by the Distributor, authorizing such investment
dealers and financial institutions to offer and sell Shares to the public upon
the terms and conditions set forth therein, which shall not be inconsistent with
the provisions of this Agreement. Each agreement shall provide that the
investment dealer or financial institution shall not act as an agent of the
Company.
6. Company Expenses. The Company shall pay, or arrange for others to pay,
the following expenses:
(A) (i) expenses of preparation, printing and distribution to shareholders
of prospectuses and statements of additional information; (ii) expenses of
preparation, printing and distribution of shareholder reports and other
communications required by law to shareholders; (iii) registration of Shares
under the federal securities laws; (iv) qualification of Shares for sale in such
states as the Distributor and the Company may approve; (v) maintenance of
facilities for the issue and transfer of Shares; (vi) expenses of provision of
information, prices and other data to be furnished by the Company under this
Agreement; and (vii) taxes applicable to the sale or delivery of Shares or
certificates therefor; and
(B) All legal expenses in connection with the foregoing.
7. Distributor Expenses. Except as otherwise provided herein, the
Distributor shall pay, or arrange for others to pay, all of the following
expenses: (i) the expenses of printing from the final proof and distributing
prospectuses and statements of additional information (including supplements
thereto) relating to public offerings made by the Distributor pursuant to this
Agreement (which shall not include those prospectuses and statements of
additional information, and supplements thereto, to be distributed to
shareholders), and any other promotional or sales literature used by the
Distributor or furnished by the Distributor to dealers in connection with such
public offerings, and expenses of advertising in connection with such public
offerings; (ii) payments to sales representatives of the Distributor and at the
discretion of the Distributor to qualified brokers, dealers and others in
respect of the sale of Shares; (iii) compensation and expenses of employees of
the Distributor who engage in or support distribution of Shares; and (iv) the
cost of obtaining such information, analysis, and reports with respect to
marketing and promotional activities as the Company may from time to time
reasonably request.
8. Limitation on Order Acceptance. The Distributor will accept orders for
the purchase of Shares only to the extent of purchase orders actually received
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and not in excess of such orders, and it will not avail itself of any
opportunity of making a profit by expediting or withholding orders. It is
mutually understood and agreed that the Company may reject purchase orders
where, in the judgment of the Company, such rejection is in the best interest of
the Company.
9. Compliance with Laws. The Company and the Distributor shall each comply
with all applicable provisions of the 1940 Act, the Securities Act of 1933, as
amended, and of all other federal and state laws, rules and regulations
governing the issuance and sale of Shares.
10. Indemnification.
(A) In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the
Distributor, the Company shall indemnify the Distributor against any and all
claims, demands, liabilities and expenses which the Distributor may incur under
the Securities Act of 1933, as amended, or common law or otherwise, arising out
of or based upon any alleged untrue statement of a material fact contained in
any registration statement or prospectus with respect to Shares, or any omission
to state a material fact therein, the omission of which makes any statement
contained therein misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished to the Company in
connection therewith by or on behalf of the Distributor. The Distributor shall
indemnify the Company against any and all claims, demands, liabilities and
expenses which the Company or Shares may incur arising out of or based upon (i)
any act or deed of the Distributor or its sales representatives which has not
been authorized by the Company in any prospectus or in this Agreement and (ii)
the Company's reliance on the Distributor's books, records, calculations and
notices hereunder.
(B) The Distributor shall indemnify the Company against any and all claims,
demands, liabilities and expenses which the Company may incur under the
Securities Act of 1933, as amended, or common law or otherwise, arising out of
or based upon any alleged untrue statement of a material fact contained in any
registration statement or prospectus with respect to Shares, or any omission to
state a material fact therein if such statement or omission was made in reliance
upon, and in conformity with, information furnished to the Company in connection
therewith by or on behalf of the Distributor.
(C) Notwithstanding any other provision of this Agreement, the Distributor
shall not be liable for any errors of the transfer agent(s) of the Shares, or
for any failure of any such transfer agent to perform its duties.
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11. No Conflict with Laws. Nothing herein contained shall be deemed to
require the Company or the Distributor to take any action contrary to its
Articles of Incorporation or By-Laws or Trust Instrument, or any applicable
statutory or regulatory requirement to which it is subject or by which it is
bound, or to relieve or deprive the Board of Directors of its responsibility for
and control of the conduct of the affairs of the Company.
12. Effective Date. This Agreement shall become effective with respect to
Shares of each Portfolio upon its approval by the Board of Directors of the
Company and by vote of a majority of the Company's directors who are not parties
to this Agreement or interested persons (as defined in Section 2(a)(19) of the
0000 Xxx) of any party to this Agreement, cast in person at a meeting called for
such purpose; shall continue in force and effect until two years from the
effective date, and from year to year thereafter, provided, that such
continuance is specifically approved with respect to Shares of each Portfolio at
least annually (a)(i) by the Board of Directors of the Company or (ii) by the
vote of a majority of the outstanding Shares of such Portfolio, and (b) by vote
of a majority of the Company's directors who are not parties to this Agreement
or "interested persons" (as defined in Section 2(a)(19) of the 0000 Xxx) of any
party to this Agreement, cast in person at a meeting called for such purpose.
13. Termination.
(A) This Agreement may be terminated with respect to Shares of any
Portfolio, at any time, without the payment of any penalty, by vote of the Board
of Directors of the Company or by vote of a majority of the outstanding Shares
of such Portfolio, or by the Distributor, on sixty (60) days' written notice to
the other party.
(B) This Agreement shall also automatically terminate in the event of its
assignment, the term "assignment" having the meaning set forth in Section
2(a)(4) of the 1940 Act.
14. Notice. Any notice under this Agreement shall be in writing, addressed
and delivered, or mailed postage prepaid, to the other party at such address as
the other party may designate for the receipt of notices. Until further notice
to the other party, the addresses of both the Company and the Distributor shall
be 000 Xxxxxxxxx Xxxx, Xxxxx, XX 00000.
15. No Personal Liability. Notice is hereby given that, as provided by
applicable law, the obligations of or arising out of this Agreement are not
binding upon any trustee, shareholder, officer, employee or agent of the
Distributor
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individually or personally, but are binding only upon the assets and property of
the Distributor and that the trustees, shareholders, officers, employees and
agents of the Distributor shall be entitled, to the fullest extent permitted by
applicable law, to the same limitation on personal liability as stockholders of
private corporations for profit.
16. Governing Law. This Agreement shall be deemed to be a contract made in
the Commonwealth of Pennsylvania and governed by, construed in accordance with
and enforced pursuant to the internal laws of the Commonwealth of Pennsylvania
without reference to its conflicts of laws rules.
17. Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor nor any of its trustees, officers,
employees or representatives is or shall be an employee of the Company in the
performance of the Distributor's duties hereunder. The Distributor shall be
responsible for its own conduct and the employment, control and conduct of its
agents and employees and for injury to such agents or employees or to others
through its agents or employees. The Distributor assumes full responsibility for
its agents and employees under applicable statutes and agrees to pay all
employee taxes thereunder.
18. Counterparts. 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.
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19. Captions. The captions in this Agreement are included for convenience
of reference only and in no other way define or delineate any of the provisions
hereof or otherwise affect construction or effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in duplicate on the day and year first above written.
PBHG ADVISOR FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Attest:
/s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: General Counsel & Secretary
PBHG FUND DISTRIBUTORS
By: /s/ Xxx X. Xxxxxxxx
-------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
Attest:
/s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: General Counsel & Secretary
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SCHEDULE A
PBHG ADVISOR FUNDS, INC.
PBHG Advisor Funds, Inc. consists of the following Funds, each of which is
subject to this Agreement:
PBHG Advisor Core Value Fund
PBHG Advisor Blue Chip Growth Fund
PBHG Advisor Global Technology & Communications Fund
PBHG Advisor Growth II Fund
PBHG Advisor Growth Opportunities Fund
PBHG Advisor High Yield Fund
PBHG Advisor Large Cap Concentrated Fund
PBHG Advisor New Contrarian Fund
PBHG Advisor Trend Fund
PBHG Advisor Cash Reserves Fund
PBHG Advisor Value Opportunities Fund
PBHG Advisor New Opportunities Fund
PBHG Advisor Enhanced Equity Fund
PBHG Advisor Master Fixed Income Fund
PBHG Advisor Short-Term Government Fund
PBHG Advisor REIT Fund
Dated: April 1, 1998
