EXHIBIT (6)(a)
DISTRIBUTION AGREEMENT
WILSHIRE TARGET FUNDS, INC.
Providence, Rhode Island
March 3, 1996
First Data Distributors, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This is to confirm that, in consideration of the
agreements hereinafter contained, the Wilshire Target Funds,
Inc. (the "Fund") has agreed that you shall be, for the
period of this agreement, the distributor of shares of each
Class of each Series of the Fund set forth on Exhibit A
hereto, as such Exhibit may be revised from time to time
(each, a "Series"). For purposes of this agreement the term
"Shares" shall mean the authorized shares of the relevant
Classes and Series.
1. Services as Distributor
1.1 You will act as agent for the distribution of Shares
covered by, and in accordance with, the registration
statement and prospectus then in effect under the Securities
Act of 1933, as amended, and will transmit promptly any
orders received by you for purchase or redemption of Shares
to the Transfer and Dividend Disbursing Agent for the Fund.
1.2 You agree to use your best efforts to solicit orders
for, and otherwise to promote, the sale of Shares. To the
extent that you receive shareholder services fees under any
shareholder services plan adopted by the Fund, you agree to
furnish, and/or enter into arrangements with others for the
furnishing of, personal and/or account maintenance services
with respect to the relevant shareholders of the Fund as may
be required pursuant to such plan. It is contemplated that
you will enter into sales or servicing agreements with
securities dealers, financial institutions and other
industry professionals, such as investment advisers,
accountants and estate planning firms, and in so doing you
may act as agent for the Fund or on your own behalf as
principal.
1.3 You shall act as distributor of Shares in compliance
with all applicable laws, rules and regulations, including
without limitation, all rules and regulations made or
adopted pursuant to the Investment Company Act of 1940, as
amended, by the Securities and Exchange Commission or any
securities association registered under the Securities
Exchange Act of 1934, as amended.
1.4 Whenever in their judgment such action is warranted by
market, economic or political conditions, or by abnormal
circumstances of any kind, the Fund's officers may decline
to accept any orders for, or make any sales of, any Shares
until such time as they deem it advisable to accept such
orders and to make such sales and the Fund shall advise you
promptly of such determination.
1.5 The Fund agrees to pay all costs and expenses in
connection with the registration of Shares under the
Securities Act of 1933, as amended, and all expenses in
connection with maintaining facilities for the issue and
transfer of Shares and for supplying information, prices and
other data to be furnished by the Fund hereunder, and all
expenses in connection with the preparation and printing of
the Fund's prospectuses and statements of additional
information for regulatory purposes and for distribution to
shareholders; provided, however, that nothing contained
herein shall be deemed to require the Fund to pay any of the
costs of advertising the sale of Shares.
1.6 The Fund agrees to execute any and all documents and
to furnish any and all information and otherwise to take all
actions which may be reasonably necessary in the discretion
of the Fund's officers in connection with the qualification
of Shares for sale in such states as you may designate to
the Fund and the Fund may approve, and the Fund agrees to
pay all expenses which may be incurred in connection with
such qualification. The Fund shall notify you in writing of
the states in which the Shares may be sold and shall notify
you in writing of any changes to the information contained
in the previous notification. You shall pay all expenses
connected with your own qualification as a dealer under
state and Federal laws and, except as otherwise specifically
provided in this agreement, all other expenses incurred by
you in connection with the sale of Shares as contemplated in
this agreement.
1.7 The Fund shall furnish you from time to time, for use
in connection with the sale of Shares, such information with
respect to the Fund or any relevant Series and the Shares as
you may reasonably request, all of which shall be signed by
one or more of the Fund's duly authorized officers; and the
Fund warrants that the statements contained in any such
information, when so signed by the Fund's officers, shall be
true and correct. The Fund also shall furnish you upon
request with: (a) semi-annual reports and annual audited
reports of the Fund's books and accounts made by independent
public accountants regularly retained by the Fund,
(b) quarterly earnings statements prepared by the Fund,
(c) a monthly itemized list of the securities in each
Series' portfolio, (d) monthly balance sheets as soon as
practicable after the end of each month, and (e) from time
to time such additional information regarding the Fund's
financial condition as you may reasonably request.
1.8 The Fund represents to you that all registration
statements and prospectuses filed by the Fund with the
Securities and Exchange Commission under the Securities Act
of 1933, as amended, and under the Investment Company Act of
1940, as amended, with respect to the Shares have been
carefully prepared in conformity with the requirements of
said Acts and rules and regulations of the Securities and
Exchange Commission thereunder. As used in this agreement
the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus, including
the statement of additional information incorporated by
reference therein, filed with the Securities and Exchange
Commission and any amendments and supplements thereto which
at any time shall have been filed with said Commission. The
Fund represents and warrants to you that any registration
statement and prospectus, when such registration statement
becomes effective, will contain all statements required to
be stated therein in conformity with said Acts and the rules
and regulations of said Commission; that all statements of
fact contained in any such registration statement and
prospectus will be true and correct when such registration
statement becomes effective; and that neither any
registration statement nor any prospectus when such
registration statement becomes effective will include an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading. The Fund may
but shall not be obligated to propose from time to time such
amendment or amendments to any registration statement and
such supplement or supplements to any prospectus as, in the
light of future developments, may, in the opinion of the
Fund's counsel, be necessary or advisable. If the Fund
shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt
by the Fund of a written request from you to do so, you may,
at your option, terminate this agreement or decline to make
offers of the Fund's securities until such amendments are
made. The Fund shall not file any amendment to any
registration statement or supplement to any prospectus
without giving you reasonable notice thereof in advance;
provided, however, that nothing contained in this agreement
shall in any way limit the Fund's right to file at any time
such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the
Fund may deem advisable, such right being in all respects
absolute and unconditional.
1.9 The Fund authorizes you to use any prospectus in the
form furnished to you time to time, in connection with the
sale of Shares. The Fund agrees to indemnify, defend and
hold you, your several officers and directors, and any
person who controls you within the meaning of Section 15 of
the Securities Act of 1933, as amended, free and harmless
(i) from and against any and all claims, demands,
liabilities and expenses (including the cost of
investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection
therewith) which you, your officers and directors, or such
controlling person, may incur, directly or indirectly, under
the Securities Act of 1933, as amended, or under common law
or otherwise, arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact
contained in any registration statement or any prospectus or
arising out of or based upon any omission, or alleged
omission, to state a material fact required to be stated in
either any registration statement or any prospectus or
necessary to make the statements in either thereof not
misleading; provided, however, that the Fund's agreement to
indemnify you, your officers or directors, and any such
controlling person shall not be deemed to cover any claims,
demands, liabilities or expenses arising out of any untrue
statement or alleged untrue statement or omission or alleged
omission made in any registration statement or prospectus in
reliance upon and in conformity with written information
furnished to the Fund by you specifically for use in the
preparation thereof; and (ii) from and against any and all
such claims, demands, liabilities and expenses (including
such costs and counsel fees) which you, your officers and
directors, or such controlling person, may incur in
connection with this Agreement or your performance hereunder
(but excluding such claims, demands, liabilities and
expenses (including such costs and counsel fees) arising out
of or based upon any untrue statement, or alleged untrue
statement, of a material fact contained in any registration
statement or any prospectus or arising out of or based upon
any omission, or alleged omission, to state a material fact
required to be stated in either any registration statement
or any prospectus or necessary to make the statements in
either therof not misleading, unless such claims, demands,
liabilities and expenses (including such costs and counsel
fees) arise by reason of your willful misfeasance, bad faith
or negligence in the performance of your duties hereunder.
The Fund acknowledges and agrees that in the event that you,
at the request of the Fund, are required to give an
indemnification comparable to that set forth in clause (i)
of Section 1.9 of this Agreement to any broker-dealer
selling Shares of the Fund and such broker-dealer shall make
a claim for indemnification against you, you will make a
similar claim for indemnification against the Fund. The
Fund's agreement to indemnify you, your officers and
directors, and any such controlling person, as aforesaid, is
expressly conditioned upon the Fund's being notified of any
action brought against you, your officers or directors, or
any such controlling person, such notification to be given
by letter or by telegram addressed to the Fund at its
address set forth above within ten days after the summons or
other first legal process shall have been served. The
failure so to notify the Fund of any such action shall not
relieve the Fund from any liability which the Fund may have
to the person against whom such action is brought by reason
of any such untrue, or alleged untrue, statement or
omission, or alleged omission, otherwise than on account of
the Fund's indemnity agreement contained in this paragraph
1.9. The Fund will be entitled to assume the defense of any
suit brought to enforce any such claim, demand or liability,
but, in such case, such defense shall be conducted by
counsel of good standing chosen by the Fund and approved by
you. In the event the Fund elects to assume the defense of
any such suit and retain counsel of good standing approved
by you, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by
any of them; but in case the Fund does not elect to assume
the defense of any such suit, or in case you do not approve
of counsel chosen by the Fund, the Fund will reimburse you,
your officers and directors, or the controlling person or
persons named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by you or
them. The Fund's indemnification agreement contained in
this paragraph 1.9 and the Fund's representations and
warranties in this agreement shall remain operative and in
full force and effect regardless of any investigation made
by or on behalf of you, your officers and directors, or any
controlling person, and shall survive the delivery of any
Shares. This agreement of indemnity will inure exclusively
to your benefit, to the benefit of your several officers and
directors, and their respective estates, and to the benefit
of any controlling persons and their successors. The Fund
agrees promptly to notify you of the commencement of any
litigation or proceedings against the Fund or any of its
officers or Board members in connection with the issue and
sale of Shares.
1.10 You agree to indemnify, defend and hold the Fund, its
several officers and Board members, and any person who
controls the Fund within the meaning of Section 15 of the
Securities Act of 1933, as amended, free and harmless from
and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending
such claims, demands or liabilities and any counsel fees
incurred in connection therewith) which the Fund, its
officers or Board members, or any such controlling person,
may incur directly or indirectly under the Securities Act of
1933, as amended, or under state securities law, federal or
state common law or otherwise, but only to the extent that
such liability or expense incurred by the Fund, its officers
or Board members, or such controlling person resulting from
such claims or demands, (i) shall arise out of or be based
upon any untrue, or alleged untrue, statement of a material
fact contained in information furnished in writing by you to
the Fund specifically for use in the Fund's registration
statement and used in the answers to any of the items of the
registration statement or in the corresponding statements
made in the prospectus, (ii) shall arise out of or be based
upon any omission, or alleged omission, to state a material
fact in connection with such information furnished in
writing by you to the Fund and required to be stated in such
answers or necessary to make such information not
misleading, or (iii) shall arise out of any violation by you
of any provision of this agreement or any provision of
applicable law, (iv) shall arise out of or be based upon
your willful misfeasance, bad faith, or negligence in the
performance of your duties hereunder. Your agreement to
indemnify the Fund, its officers and Board members, and any
such controlling person, as aforesaid, is expressly
conditioned upon your being notified of any action brought
against the Fund, its officers or Board members, or any such
controlling person, such notification to be given by letter
or telegram addressed to you at your address set forth above
within ten days after the summons or other first legal
process shall have been served. You shall have the right to
control the defense of such action, with counsel of your own
choosing, satisfactory to the Fund, if such action is based
solely upon such alleged misstatement or omission on your
part, and in any other event the Fund, its officers or Board
members, or such controlling person shall each have the
right to participate in the defense or preparation of the
defense of any such action. The failure so to notify you of
any such action shall not relieve you from any liability
which you may have to the Fund, its officers or Board
members, or to such controlling person by reason of any such
untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of your indemnity
agreement contained in this paragraph 1.10. This agreement
of indemnity will inure exclusively to the Fund's benefit,
to the benefit of the Fund's officers and Board members, and
their respective estates, and to the benefit of any
controlling persons and their successors. You agree
promptly to notify the Fund of the commencement of any
litigation or proceedings against you or any of your
officers or directors in connection with the issue and sale
of Shares.
1.11 No Shares shall be offered by either you or the Fund
under any of the provisions of this agreement and no orders
for the purchase or sale of such Shares hereunder shall be
accepted by the Fund if and so long as the effectiveness of
the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the
provisions of the Securities Act of 1933, as amended, or if
and so long as a current prospectus as required by
Section 10 of said Act, as amended, is not on file with the
Securities and Exchange Commission; provided, however, that
nothing contained in this paragraph 1.11 shall in any way
restrict or have an application to or bearing upon the
Fund's obligation to repurchase any Shares from any
shareholder in accordance with the provisions of the Fund's
prospectus or charter documents.
1.12 The Fund agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange
Commission for amendments to the registration statement or
prospectus then in effect or for additional information;
(b) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the
effectiveness of the registration statement or prospectus
then in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event which makes untrue any
statement of a material fact made in the registration
statement or prospectus then in effect or which requires the
making of a change in such registration statement or
prospectus in order to make the statements therein not
misleading; and
(d) of all actions of the Securities and Exchange
Commission with respect to any amendments to any
registration statement or prospectus which may from time to
time be filed with the Securities and Exchange Commission.
1.13 Each party shall have the duty to mitigate damages for
which the other party may become responsible.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES OR ANY OF
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES.
2. Offering Price
Shares of any class of the Fund offered for sale by
you shall be offered for sale at a price per share (the
"offering price") approximately equal to (a) their net asset
value (determined in the manner set forth in the Fund's
charter documents) plus (b) a sales charge, if any (except
with respect to sales to those persons set forth in the
then-current prospectus to whom sales may be made without
sales charge), which shall be the percentage of the offering
price of such Shares as set forth in the Fund's then-current
prospectus. The offering price, if not an exact multiple of
one cent, shall be adjusted to the nearest cent. In
addition, Shares of any class of the Fund offered for sale
by you may be subject to a contingent deferred sales charge
as set forth in the Fund's then-current prospectus. You
shall be entitled to receive any sales charge or contingent
deferred sales charge in respect of the Shares. Any
payments to dealers shall be governed by a separate
agreement between you and such dealer and the Fund's then-
current prospectus.
3. Term
As to each Series, this agreement shall continue until
the date (the "Reapproval Date") set forth opposite such
Series name on Exhibit A hereto, and thereafter shall
continue automatically for successive annual periods ending
on the day (the "Reapproval Day") of each year set forth on
Exhibit A hereto, provided such continuance is specifically
approved at least annually by (i) the Fund's Board or
(ii) vote of a majority (as defined in the Investment
Company Act of 1940) of the Shares of the Fund or the
relevant Series, as the case may be, provided that in either
event its continuance also is approved by a majority of the
Board members who are not "interested persons" (as defined
in said Act) of any party to this agreement (the
"Independent Directors"), by vote cast in person at a
meeting called for the purpose of voting on such approval.
This agreement is terminable without penalty, on 60 days'
notice, by vote of holders of a majority of the Fund's or,
as to any relevant Series, such Series' outstanding voting
securities or by a majority of such Independent Directors as
to the Fund or the relevant Series, as the case may be, or
by you. This agreement also will terminate automatically,
as to the Fund or relevant Series, as the case may be, in
the event of its assignment (as defined in said Act). If
the Fund has adopted a multiple class plan or a distribution
plan, you agree to furnish such information as may be
reasonably necessary to assist the Directors of the Fund in
their periodic evaluation of such plan or plans.
4. Non-exclusivity
The Fund recognizes that you may act as the
distributor of securities of other persons (including other
investment companies) and that you and your affiliates may
furnish brokerage, distribution and other services to other
persons (including other investment companies), and the Fund
has no objection to your so acting. The Fund acknowledges
that the persons employed by you to assist in the
performance of your duties under this agreement may not
devote their full time to such service and nothing contained
in the agreement shall be deemed to limit or restrict your
or any of your affiliates right to engage in and devote time
and attention to other businesses or to render services of
whatever kind or nature.
5. Exclusion of Warranties
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, YOU DISCLAIM ALL OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO
THE FUND OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OF
OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR
USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED
INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. YOU
DISCLAIM ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS
OTHERWISE SET FORTH IN THIS AGREEMENT.
Please confirm that the foregoing is in accordance
with your understanding and indicate your acceptance hereof
by signing below, whereupon it shall become a binding
agreement between us.
Very truly yours,
WILSHIRE TARGET FUNDS, INC.
By /s/ Xxxxxx X. Xxxxxxx
Accepted:
FIRST DATA DISTRIBUTORS, INC.
By: /s/ Xxxxx Hal
EXHIBIT A
The Institutional Class shares and the
Investment Class shares of each of the following
Series of the Fund:
Name of Series Reapproval Date
Reapproval Day
Large Company Growth Portfolio March 31, 1997
March 31
Large Company Value Portfolio March 31, 1997 March
31
Small Company Growth Portfolio March 31, 1997
March 31
Small Company Value Portfolio March 31, 1997 March
31
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