EXHIBIT 99.B6(a)
AMENDED DISTRIBUTION AGREEMENT
STAGECOACH FUNDS, INC.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
December 15, 1994
Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Dear Sirs:
This will confirm the agreement between the undersigned (the "Company")
on behalf of each of its portfolios (each, a "Fund") and you ("Distributor") as
follows:
1. As the Company's agent, Distributor shall be the exclusive
distributor for the unsold portion of shares of the Fund that are registered
under the Securities Act of 1933 (the "1933 Act").
2. The Company shall sell through Distributor, as the Company's agent,
and deliver, upon the terms set forth herein, Fund shares that Distributor
orders from the Company and for which Distributor has received and confirmed
unconditional purchase orders. All orders from Distributor shall be subject to
acceptance and confirmation by the Company. The Company shall have the right,
at its election, to deliver either shares issued upon original issue or treasury
shares.
3. As the Company's agent, Distributor may sell and distribute Fund
shares in such manner not inconsistent with the provisions hereof as Distributor
may determine from time to time. In that connection Distributor shall comply
with all laws, rules and regulations applicable to it, including, without
limiting the generality of the foregoing, all applicable rules or regulations
under the Investment Company Act of 1940 (the "1940 Act") and of any securities
association registered under the Securities Exchange Act of 1934 (the "1934
Act").
4. The Company reserves the right to sell Fund shares to purchasers to
the extent that it or the transfer agent for Fund shares receives purchase
applications therefor. Distributor's right to accept purchase orders for Fund
shares or to make sales thereof shall not apply to Fund shares that may be
offered by the Company to shareholders for the reinvestment of cash distributed
to shareholders by the Company or Fund shares that may otherwise be offered by
the Company to shareholders, unless Distributor is otherwise notified by the
Company.
5. All shares offered for sale and sold by Distributor shall be offered
for sale and sold by Distributor to or through securities dealers or banks and
other depository institutions
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having agreements with Distributor ("Selling Agents") upon the terms and
conditions set forth in paragraph 7(b) hereof or to investors at the price per
share (the "offering price", which is the net asset value per share plus the
applicable sales charge, if any) specified and determined as provided in the
Prospectus (the "Prospectus") included in the Company's Registration Statement,
as amended from time to time, under the 1933 Act and the 1940 Act (the
"Registration Statement"), relating to the offering of its shares for sale. If
the offering price is not an exact multiple of one cent, it shall be adjusted to
the nearest full cent. The Company shall determine and furnish promptly to
Distributor a statement of the offering price at least once on each day on which
the Prospectus states the Company is required to determine the Company's net
asset value for the purpose of pricing purchase orders. Each offering price
shall become effective at the time and shall remain in effect during the period
specified in the statement. Each such statement shall show the basis of its
computation. For purposes of establishing the offering price, the Company shall
consider a purchase order to have been presented to it at the time it was
originally entered by Distributor for transmission to it, provided the original
purchase order and Distributor's fulfilling order to the Company are
appropriately time stamped or evidenced to show the time of original entry and
that Distributor's fulfilling order to the Company is received by the Company
within a time deemed by it to be reasonable after the purchase order was
originally entered. Purchases of shares shall be made for full and fractional
shares, carried to the third decimal place.
6. Ownership of Fund shares sold hereunder shall be registered in such
names and denominations as are specified in writing to the Company or to its
agent designated for the purpose. No certificates for shares of the Fund will
be issued.
7. (a) Distributor shall from time to time employ or associate with it
such persons as it believes necessary to assist it in carrying out its
obligations under this agreement. The compensation of such persons shall be
paid by Distributor.
(b) Distributor shall have the right to enter into selling agreements
with Selling Agents of its choice for the sale or marketing of Fund shares at
the offering price and upon the terms and conditions set forth in the
Prospectus. The initial form of selling agreement is attached hereto as an
Exhibit. Distributor may amend those agreements, or modify the form of
agreement, only upon approval of the Company.
(c) Distributor shall pay all expenses incurred in connection with its
qualification as a dealer or broker under Federal or state laws.
(d) Distributor shall pay for all expenses incurred in connection with
(i) printing and distributing such number of copies of the Prospectus as the
Distributor deems necessary for use in connection with offering Fund shares to
prospective investors, (ii) preparing, printing and distributing any other
literature and advertising deemed appropriate by Distributor for use in
connection with offering Fund shares for sale and (iii) all other expenses
incurred in connection with the sale of Fund shares as contemplated by this
agreement, except as otherwise specifically provided in this agreement. In
addition, it is understood and agreed that, so long as a plan of distribution of
the Fund adopted pursuant to Rule 12b-1 of the 1940 Act (the "Plan") continues
in effect, any expenses incurred by the Distributor hereunder may be paid from
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amounts received by it from the Fund under the Plan. So long as the Plan
continues in effect, Distributor shall be entitled to receive reimbursement from
the Company under the Plan for actual expenses incurred in connection with the
Fund to the extent such expenses are reimbursable under the Plan. The Treasurer
of the Company shall provide to the Board of Directors of the Company and the
Board of Directors shall review, at least quarterly, a written report of the
amounts so expended and the purposes for which such expenditures were made.
(e) The Company shall pay all expenses incurred in connection with (i)
the preparation, printing and distribution to stockholders of the Prospectus and
reports and other communications to Fund shareholders; (ii) registrations of
Fund shares under the 1933 Act and the Fund under the 1940 Act; (iii) amendments
to the Registration Statement; (iv) qualification of Fund shares for sale in
jurisdictions designated by Distributor; (v) qualification of the Company as a
dealer or broker under the laws of jurisdictions designated by Distributor; (vi)
qualification of the Company as a foreign corporation authorized to do business
in any jurisdiction if Distributor determines that such qualification is
necessary or desirable for the purpose of facilitating sales of Fund shares;
(vii) maintaining facilities for the issue and transfer of Fund shares; (viii)
supplying information, prices and other data to be furnished by the Company
under this agreement; and (ix) original issue taxes or transfer taxes applicable
to the sale or delivery of Fund shares.
(f) The Company shall execute all documents and furnish any
information which may be reasonably necessary in connection with the
qualification of Fund shares of the Company for sale in a jurisdiction
designated by Distributor.
(g) The Company shall pay to the Distributor the amount that is
payable pursuant to, and in accordance with, the Distribution Plan applicable to
a Fund or class of shares of a Fund, or the maximum amount payable under
applicable laws, regulations and rules, whichever is less. The actual amount
payable with respect to such Fund in any month is to be determined by mutual
agreement.
8. The Company shall furnish Distributor from time to time, for use in
connection with the sale of Fund shares, such written information with respect
to the Company as Distributor may reasonably request. In each case such written
information shall be signed by an authorized officer of the Company. The
Company represents and warrants that such information, when signed by one of its
officers, shall be true and correct. The Company shall also furnish to
Distributor copies of its reports to its stockholders and such additional
information regarding the Company's financial condition as Distributor may
reasonably request from time to time.
9. The Registration Statement and the Prospectus have been or will be,
as the case may be, carefully prepared in conformity with the 1933 Act, the 1940
Act and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "SEC"). The company represents and
warrants to Distributor that the Registration Statement and the Prospectus
contain or will contain all statements required to be stated therein in
accordance with the 1933 Act, the 1940 Act and the Rules and Regulations, that
all statements of fact contained or to be contained therein are or will be true
and correct at the time indicated or the effective date, as the case may be, and
that neither the Registration Statement nor the Prospectus,
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when it shall become effective under the 1933 Act or be authorized for use,
shall 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 to a purchaser of Fund shares. The Company shall from time to
time file such amendment or amendments to the Registration Statement and the
Prospectus as, in the light of future developments, shall, in the opinion of the
Company's counsel, be necessary in order to have the Registration Statement and
the Prospectus at all times contain all material facts required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of Fund shares. If the Company shall not file such amendment or
amendments within 15 days after receipt by the Company of a written request from
Distributor to do so, Distributor may, at its option, terminate this agreement
immediately. The Company shall not file any amendment to the Registration
Statement or the Prospectus without giving Distributor reasonable notice thereof
in advance, provided that nothing in this agreement shall in any way limit the
Company's right to file at any time such amendments to the Registration
Statement or the Prospectus as the Company may deem advisable. The Company
represents and warrants to Distributor that any amendment to the Registration
Statement or the Prospectus filed hereafter by the Company will, when it becomes
effective under the 1933 Act, contain all statements required to be stated
therein in accordance with the 1933 Act, the 1940 Act and the Rules and
Regulations, that all statements of fact contained therein will, when the same
shall become effective, be true and correct, and that no such amendment, when it
becomes effective, will include an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading to a purchaser of Fund shares.
10. Subject to the provisions of paragraph 7, the Company shall prepare
and furnish to Distributor from time to time such number of copies of the most
recent form of the Prospectus filed with the SEC as Distributor may reasonably
request. The Company authorizes Distributor and Selling Agents to use the
Prospectus, in the form furnished to Distributor from time to time, in
connection with the sale of Fund shares. The Company shall indemnify, defend
and hold harmless Distributor, its officers and partners and any person who
controls Distributor within the meaning of the 1933 Act, 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 Distributor, its officers or
partners or any such controlling person, may incur under the 1933 Act, the 1940
Act, the common law or otherwise, arising out of or based upon any alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus or arising out of or based upon any alleged omission to state a
material fact required to be stated in either thereof or necessary to make the
statements in either thereof not misleading. Notwithstanding the foregoing,
this indemnity agreement, to the extent that it might require indemnity of any
person who is an officer or partner of Distributor and who is also a director of
the Company, shall not inure to the benefit of such officer or partner unless a
court of competent jurisdiction shall determine, or it shall have been
determined by controlling precedent, that such result would not be against
public policy as expressed in the 1933 Act or the 1940 Act, and in no event
shall anything contained herein be so construed as to protect Distributor
against any liability to the Company or its stockholders to which 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. This indemnity
agreement is expressly conditioned upon the
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Company's being notified of any action brought against Distributor, its officers
or partners or any such controlling person, which notification shall be given by
letter or by telegram addressed to the Company at its principal office in Little
Rock, Arkansas, and sent to the Company by the person against whom such action
is brought within 10 days after the summons or other first legal process shall
have been served. The failure to notify the Company of any such action shall not
relieve the company from any liability which it may have to the person against
whom such action is brought by reason of any such alleged untrue statement or
omission otherwise than on account of the indemnity agreement contained in this
paragraph. The Company shall be entitled to assume the defense of any suit
brought to enforce any such claim, demand or liability, but, in such case, the
defense shall be conducted by counsel chosen by the Company and approved by
Distributor. If the Company elects to assume the defense of any such suit and
retain counsel approved by Distributor, 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 Company does not elect to assume the defense of any such
suit, or in case Distributor does not approve of counsel chosen by the Company,
the Company will reimburse Distributor, its officers and partners or the
controlling person or persons named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by Distributor or them. In
addition, Distributor shall have the right to employ one separate counsel to
represent it, its officers and partners and any such controlling person who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by Distributor against the Company hereunder if in the reasonable
judgment of Distributor it is advisable because of actual or potential differing
interests between the Distributor, its officers and partners or such controlling
person and the Company in the conduct of the defense of such action, for
Distributor, its officers and partners or such controlling person to be
represented by separate counsel, in which event the fees and expenses of such
separate counsel shall be borne by the Company. This indemnity agreement and the
Company'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 Distributor, its officers and partners or any such controlling
person and shall survive the delivery of any shares as provided in this
agreement. This indemnity agreement shall inure exclusively to the benefit of
Distributor and its successors, Distributor's officers and partners and their
respective estates and any such controlling persons and their successors and
estates. The Company shall promptly notify Distributor of the commencement of
any litigation or proceedings against it in connection with the issue and sale
of any Fund shares.
11. Distributor agrees to indemnify, defend and hold harmless the
Company, its officers and directors and any person who controls the Company
within the meaning of the 1933 Act, 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 Company, its officers or directors or any such
controlling person, may incur under the 1933 Act, the 1940 Act, the common law
or otherwise, but only to the extent that such liability or expense incurred by
the Company, its officers or directors or such controlling person resulting from
such claims or demands shall arise out of or be based upon (a) any alleged
untrue statement of a material fact contained in information furnished in
writing by Distributor to the Company specifically for use in the Registration
Statement or the Prospectus or shall arise out of or be based upon any alleged
omission required to be stated in the Registration Statement or the Prospectus
or necessary to make such information not misleading and (b) any alleged act or
omission on Distributor's part as the Company's agent that has not been
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expressly authorized by the Company in writing. This indemnity agreement is
expressly conditioned upon Distributor's being notified of any action brought
against the Company, its officers and directors or any such controlling person,
which notification shall be given by letter or telegram, addressed to
Distributor at its principal office in Little Rock, Arkansas, and sent to
Distributor by the person against whom such action is brought, within 10 days
after the summons or other first legal process shall have been served. The
failure to notify Distributor of any such action shall not relieve Distributor
from any liability which it may have to the Company, its officers or directors
or such controlling person by reason of any such alleged misstatement or
omission on Distributor's part otherwise than on account of the indemnity
agreement contained in this paragraph. Distributor shall have a right to
control the defense of such action with counsel of its own choosing and approved
by the Company if such action is based solely upon such alleged misstatement or
omission on Distributor's part, and in any other event the Company, its officers
and directors or such controlling person shall each have the right to
participate in the defense or preparation of the defense of any such action at
their own expense.
12. No Fund shares shall be sold through Distributor or by the Company
under this agreement and no orders for the purchase of Fund shares shall be
confirmed or accepted by the Company if and so long as the effectiveness of the
Registration Statement shall be suspended under any of the provisions of the
1933 Act. Nothing contained in this paragraph 12 shall in any way restrict,
limit or have any application to or bearing upon the Company's obligation to
redeem Fund shares from any shareholder in accordance with the provisions of its
Articles of Incorporation. The Company will use its best efforts at all times
to have Fund shares effectively registered under the 0000 Xxx.
13. The Company agrees to advise Distributor immediately:
(a) of any request by the SEC for amendments to the Registration
Statement or the Prospectus or for additional information;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the Prospectus
under the 1933 Act or the initiation of any proceedings for that purpose;
(c) of the happening of any material event that makes untrue any
statement made in the Registration Statement or the Prospectus or that requires
the making of a change in either thereof in order to make the statements therein
not misleading; and
(d) of any action of the SEC with respect to any amendments to the
Registration Statement or the Prospectus that may from time to time be filed
within the SEC under the 1933 Act or the 1940 Act.
14. Insofar as they concern the Company, the Company shall comply with
all applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules or regulations made or adopted pursuant
to the 1933 Act, the 1940 Act or by any securities association registered under
the 1934 Act.
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15. Distributor may, if it desires and at its own cost and expense,
appoint or employ agents to assist it in carrying out its obligations under this
agreement, but no such appointment or employment shall relieve Distributor of
any of its responsibilities or obligations to the Company under this agreement.
16. Subject to the provisions of paragraph 9, this agreement shall
continue in effect until such time as there shall remain no unsold balance of
Fund shares registered under the 1933 Act, provided that this agreement shall
continue in effect for a period of more than one year from the date hereof only
so long as such continuance is specifically approved at least annually in
accordance with the 1940 Act and the rules thereunder. This agreement shall
terminate automatically in the event of its assignment (as defined in the 1940
Act). This agreement may, in any event, be terminated at any time, without the
payment of any penalty, by the Company upon 60 days' written notice to
Distributor or by Distributor at any time after the second anniversary of the
effective date of this agreement on 60 days' written notice to the Company.
17. This agreement shall be governed by and construed in accordance with
the laws of the State of Arkansas.
If the foregoing correctly sets forth the agreement between the Company
and Distributor, please so indicate by signing and returning to the Company the
enclosed copy hereof.
Very truly yours,
STAGECOACH FUNDS, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxx, Xx.
Chief Operating Officer,
Secretary and Treasurer
ACCEPTED as of the date
set forth above:
XXXXXXXX INC.
By: /s/ R. Xxxx Xxxxxx
-------------------
R. Xxxx Xxxxxx
Senior Vice President
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