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EXHIBIT 6(a)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
This Amended and Restated Distribution Agreement is made as of
this September 1, 1995 between PACIFIC HORIZON FUNDS, INC., a Maryland
corporation (herein called the "Company"), and CONCORD FINANCIAL GROUP, INC., a
Delaware corporation (herein called "CFG").
WHEREAS, the Company is an open-end, management investment
company and is so registered under the Investment Company Act of 1940; and
WHEREAS, the Company will offer and maintain the following
investment portfolios: Prime Fund, Treasury Fund, Treasury Only Fund, Government
Fund, Tax-Exempt Money Fund, California Tax-Exempt Money Market Fund, Prime
Value Fund, Aggressive Growth Fund, U.S. Government Securities Fund, Capital
Income Fund, California Tax-Exempt Bond Fund, Blue Chip Fund, Flexible Bond
Fund, Asset Allocation Fund, National Municipal Bond Fund, Utilities Fund,
Short-Term Government Fund, Corporate Bond Fund, Growth and Income Fund,
International Bond Fund and International Equity Fund (individually a "Fund" and
collectively the "Funds"); and
WHEREAS, pursuant to an Administration Agreement dated
November 13, 1989, as amended, Basic Administrative Services Agreement dated
November 13, 1989, as amended, and Special Management Services Agreement, dated
April 22, 1992, as amended, (collectively the "Management Agreements") between
the Company and Concord Holding Corporation ("Concord"), the Company has
retained Concord to provide administrative and management services to the Funds;
and
WHEREAS, the Company desires to retain CFG as Distributor for
the Funds to provide for the sale and Distribution of shares of common stock of
the Funds, each such share having a par value of $.001 per share (herein
collectively called "Shares"), and CFG is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein the parties hereto agree as follows:
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I. DELIVERY OF DOCUMENTS
The Company has delivered to CFG copies of each of the
following documents and will deliver to it all future amendments and supplements
thereto, if any:
(a) The Company's Charter and all amendments thereto
(such Charter, as presently in effect and as it shall from time to time be
amended, herein called the "Company's Charter");
(b) Bylaws of the Company (such Bylaws, as presently
in effect and as they shall from time to time be amended, herein called the
"Bylaws");
(c) Resolutions of the Board of Directors of the
Company authorizing the execution and delivery of this Agreement;
(d) Post-Effective Amendment No. 39 to the Company's
registration statement under the Securities Act of 1933, as amended (the "1933
Act"), and the Investment Company Act of 1940, as amended (the "1940 Act"), on
Form N-1A as filed with the Securities and Exchange Commission (the
"Commission") relating to the Shares, and all subsequent amendments thereto
(said registration statement, as presently in effect and as amended or
supplemented from time to time, is herein called the "Registration Statement");
(e) Notification of Registration of the Company under
the 1940 Act on Form N-8A as filed with the Commission; and
(f) Prospectuses and statements of additional
information of the Company and of each Fund (such prospectuses and statements of
additional information, as presently in effect and as they shall from time to
time be amended and supplemented, herein called individually the "Prospectus"
and collectively the "Prospectuses").
II. DISTRIBUTION
1. APPOINTMENT OF DISTRIBUTOR. The Company hereby
appoints CFG as Distributor of the Funds' Shares and CFG hereby accepts such
appointment and agrees to render the services and duties set forth in this
Section II.
2. SERVICES AND DUTIES.
(a) The Company agrees to sell through CFG, as agent,
from time to time during the term of this Agreement, Shares of each class now or
hereafter created in the Funds (whether authorized but unissued or treasury
shares, in the
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Company's sole discretion) upon the terms and at the current offering price as
described in the applicable Prospectus. CFG will act only on its own behalf as
principal in making agreements with selected dealers or others for the sale and
redemption of Shares, and shall sell Shares only at the offering price thereof
as set forth in the applicable Prospectus. CFG shall devote its best efforts to
effect sales of Shares of each of the Funds, but shall not be obligated to sell
any certain number of Shares.
(b) In all matters relating to the sale and
redemption of Shares CFG will act in conformity with the Company's Charter,
Bylaws and Prospectuses and with the instructions and directions of the Board of
Directors of the Company, and will conform to and comply with the requirements
of the 1933 Act, the 1940 Act, the regulations of the National Association of
Securities Dealers, Inc. and all other applicable federal or state laws and
regulations. In connection with such sales, CFG acknowledges and agrees that it
is not authorized to provide any information or make any representations other
than as contained in the Company's Registration Statement and Prospectuses and
any sales literature specifically approved by the Company.
(c) CFG will bear the cost of (i) printing and
distributing any Prospectus (including any supplement thereto), and (ii)
preparing, printing and distributing any literature, advertisement or material
which is primarily intended to result in the sale of the Shares; provided,
however, that CFG shall not be obligated to bear the expenses incurred by the
Company in connection with (1) the preparation and printing of any supplement or
amendment to any Registration Statement or Prospectus necessary for the
continued effective registration of the Shares under the 1933 Act or any state
securities laws; and (2) the printing and distribution of any Prospectus,
supplement or amendment thereto for existing shareholders of the Fund described
therein; and provided, further, that each Fund will bear the expenses incurred
and other payments made in accordance with the provisions of this Agreement and
any plan now or hereafter adopted with respect to any class or classes of Shares
of such Funds pursuant to Rule 12b-1 under the 1940 Act.
(d) Except for Shares that are sold with a contingent
deferred sales charge ("CDSC"), all Shares of the Aggressive Growth, U.S.
Government Securities, Capital Income, California Tax-Exempt Bond, Blue Chip,
Flexible Bond, Asset Allocation, National Municipal Bond, Utilities, Corporate
Bond, Growth and Income, International Bond and International Equity Funds of
the Company offered for sale by CFG shall be offered for sale to the public at a
price per Share (the "offering price") equal to (i) their net asset value
(determined in the manner set forth in the Company's Charter and then current
Prospectuses) plus, except with respect to those classes of persons or
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transactions set forth in the then current Prospectuses, (ii) a sales charge
which shall be the percentage of the offering price of such Shares as set forth
in the Company's then current Prospectuses. The offering price, if not an exact
multiple of one cent, shall be adjusted to the nearest cent. Concessions by CFG
to broker-dealers and other persons shall be set forth in either the selling
agreements between CFG and such broker-dealers and persons or, if such
concessions are described in the then current Prospectuses, shall be as so set
forth. No broker-dealer or other person who enters into a selling agreement with
CFG shall be authorized to act as agent for the Company in connection with the
offering or sale of its Shares to the public or otherwise.
(e) If any Shares sold by CFG under the terms of this
Agreement are redeemed or repurchased by the Company or by CFG as agent or are
tendered for redemption within seven business days after the date of
confirmation of the original purchase of said Shares, CFG shall forfeit the
amount above the net asset value received by it in respect of such Shares,
provided that the portion, if any, of such amount re-allowed by CFG to
broker-dealers or other persons shall be repayable to the Company only to the
extent recovered by CFG from the broker-dealer or other person concerned. CFG
shall include in the forms of agreement with such broker-dealers and other
persons a corresponding provision for the forfeiture by them of their concession
with respect to Shares sold by them or their principals and redeemed or
repurchased by the Company or by CFG as agent (or tendered for redemption)
within seven business days after the date of confirmation of such initial
purchases.
(f) With respect to such classes of Shares, if any,
that are sold with a contingent deferred sales charge ("CDSC"), CFG shall impose
a CDSC in connection with the redemption of the Shares of such classes, not to
exceed a specified percentage of the original purchase price of the Shares, as
from time to time set forth in the applicable Prospectuses. CFG may retain (or
receive from the Company, as the case may be) all of any CDSC. CFG may pay to
broker-dealers or other persons through whom such Shares are sold a commission
or other payment to the extent consistent with the current Prospectuses and
applicable rules and regulations.
3. SALES AND REDEMPTIONS.
(a) The Company shall pay all costs and expenses in
connection with the registration of the Shares under the 1933 Act, and all
expenses in connection with maintaining facilities for the issue and transfer of
the Shares and for supplying information, prices and other data to be furnished
by the Company hereunder, and all expenses in connection with preparing,
printing and distributing the Prospectuses except as set forth in
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subsection 2(c) of Section II hereof or in any other agreement entered into by
the Company.
(b) The Company shall execute all documents, furnish
all information and otherwise take all actions which may be reasonably necessary
in the discretion of the Company's officers in connection with the qualification
of the Shares for sale in such states as CFG may designate to the Company and
the Company may approve, and the Company shall pay all filing fees which may be
incurred in connection with such qualification. CFG shall pay all expenses
connected with its qualification as a dealer under state or federal laws and,
except as otherwise specifically provided in this Agreement, all other expenses
incurred by CFG in connection with the sale of the Shares as contemplated in
this Agreement. It is understood that certain advertising, marketing,
shareholder servicing, administration, distribution and/or other expenses to be
incurred in connection with the Shares may be paid as provided in a Shareholder
Service Plan or a plan adopted pursuant to Rule 12b-1 of the 1940 Act adopted by
the Company (collectively, the "Plans"). The Distributor agrees to be
responsible for implementing and operating such Plans in accordance with the
terms thereof.
(c) The Company shall have the right to suspend the
sale of Shares of any Fund at any time in response to conditions in the
securities markets or otherwise, and to suspend the redemption of Shares of any
Fund at any time as permitted by the 1940 Act or the rules of the Commission
("Rules").
(d) The Company reserves the right to reject any
order for Shares, but will not do so arbitrarily or without reasonable cause.
III. LIMITATIONS OF LIABILITY
CFG shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Company or any Fund in connection with
the matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith or negligence on its part in the performance of
its duties or from reckless disregard by it of its obligations and duties under
this Agreement.
IV. CONFIDENTIALITY
CFG will treat confidentially and as proprietary information
of the Company all records and other information relative to the Company and the
Funds and prior or present shareholders or those persons or entities who respond
to CFG'S inquiries concerning investment in the Company, and will not use
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such records and information for any purpose other than the performance of its
responsibilities and duties hereunder or under any other agreement with the
Company, except after prior notification to and approval in writing by the
Company, which approval shall not be unreasonably withheld and may not be
withheld where CFG may be exposed to civil or criminal contempt proceedings for
failure to comply, when CFG is requested to divulge such information by duly
constituted authorities, or when CFG is so requested by the Company.
V. INDEMNIFICATION
1. COMPANY REPRESENTATIONS. The Company represents and
warrants to CFG that at all times the Registration Statement and Prospectuses
will in all material respects conform to the applicable requirements of the 1933
Act and the Rules and will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that no representation or warranty in this
subsection shall apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
and with respect to CFG expressly for use in the Registration Statement or
Prospectuses.
2. CFG REPRESENTATIONS. CFG represents and warrants to the
Company that it is duly organized as a Delaware corporation and is and at all
times will remain duly authorized and licensed to carry out its services as
contemplated herein.
3. COMPANY INDEMNIFICATION. The Company will indemnify, defend
and hold harmless CFG, its several officers and directors, and any person who
controls CFG within the meaning of Section 15 of the 1933 Act, from and against
any losses, claims, damages or liabilities, joint or several, to which any of
them may become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectuses or in any application or other document executed by or on behalf of
the Company, or arise out of, or are based upon, information furnished by or on
behalf of the Company filed in any state in order to qualify the Shares under
the securities or blue sky laws thereof ("Blue Sky Application"), or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse CFG, its several officers and
directors, and any person who controls CFG within the meaning of Section 15 of
the 1933 Act, for any
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legal or other expenses reasonably incurred by any of them in investigating,
defending or preparing to defend any such action, proceeding or claim; provided,
however, that the Company shall not be liable in any case to the extent that
such loss, claim, damage or liability arises out of, or is based upon, any
untrue statement, alleged untrue statement, or omission or alleged omission made
in the Registration Statement, the Prospectuses, any Blue Sky Application or any
application or other document executed by or on behalf of the Company in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of and with respect to CFG specifically for inclusion
therein.
The Company shall not indemnify any person pursuant to this
subsection 3 unless the court or other body before which the proceeding was
brought has rendered a final decision on the merits that such person was not
liable by reason of his willful misfeasance, bad faith or negligence in the
performance of his duties, or his reckless disregard of obligations and duties,
under this Agreement ("disabling conduct") or, in the absence of such a
decision, a reasonable determination (based upon a review of the facts) that
such person was not liable by reason of disabling conduct has been made by the
vote of a majority of a quorum of directors of the Company who are neither
"interested persons" of the Company (as defined in the 0000 Xxx) nor parties to
the proceeding, or by an independent legal counsel in a written opinion.
Each Fund shall advance attorneys' fees and other expenses
incurred by any person in defending any claim, demand, action or suit which is
the subject of a claim for indemnification pursuant to this subsection 3, so
long as: (a) such person shall undertake to repay all such advances unless it is
ultimately determined that he is entitled to indemnification hereunder; and (b)
such person shall provide security for such undertaking, or the Fund shall be
insured against losses arising by reason of any lawful advances, or a majority
of a quorum of the disinterested, non-party directors of the Company (or an
independent legal counsel in a written opinion) shall determine based on a
review of readily available facts (as opposed to a full trial-type inquiry) that
there is reason to believe that such person ultimately will be found entitled to
indemnification hereunder.
4. CFG INDEMNIFICATION. CFG will indemnify, defend
and hold harmless the Company, each Fund, the Company's several officers and
directors and any person who controls the Company or any Fund within the meaning
of Section 15 of the 1933 Act, from and against any losses, claims, damages or
liabilities, joint or several, to which any of them may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise
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out of, or are based upon, any breach of its representations and warranties in
subsection 2 hereof or its agreements in subsection 2 of Section II hereof, or
which arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectuses, any Blue Sky Application or any application or other document
executed by or on behalf of the Company, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, which statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company or any of its several officers and directors by or on behalf of and with
respect to CFG specifically for inclusion therein, and will reimburse the
Company, each Fund, the Company's several officers and directors, and any person
who controls the Company or any Fund within the meaning of Section 15 of the
1933 Act, for any legal or other expenses reasonably incurred by any of them in
investigating, defending or preparing to defend any such action, proceeding or
claim.
5. GENERAL INDEMNITY PROVISIONS. No indemnifying
party shall be liable under its indemnity agreement contained in sub-section 3
or 4 hereof with respect to any claim made against such indemnifying party
unless the indemnified party shall have notified the indemnifying party in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
indemnified party (or after the indemnified party shall have received notice of
such service on any designated agent), but failure to notify the indemnifying
party of any such claim shall not relieve it from any liability which it may
otherwise have to the indemnified party. The indemnifying party will 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 such liability, and if the
indemnifying party elects to assume the defense, such defense shall be conducted
by counsel chosen by it and reasonably satisfactory to the indemnified party. In
the event the indemnifying party elects to assume the defense of any such suit
and retain such counsel, the indemnified party shall bear the fees and expenses
of any additional counsel retained by the indemnified party.
VI. DURATION AND TERMINATION
This Agreement shall become effective as of the date
hereof and, unless sooner terminated as provided herein, shall continue in
effect with respect to each Fund until October 31, 1995. Thereafter, if not
terminated, this Agreement shall continue automatically for successive terms of
one year, provided that such continuance is specifically approved at least
annually (a) by a vote of a majority of those members of the Board of
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Directors of the Company who are not parties to this Agreement or "interested
persons" of any such party and have no direct or indirect financial interest in
the operation of any Plan adopted pursuant to Rule 12b-1 of the 1940 Act that
has been adopted by the Company or in any agreements entered into in connection
with such Plans, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Board of Directors of the Company or by vote of a
"majority of the outstanding voting securities" of the Funds as to which the
Agreement is effective; provided, however, that this Agreement may be terminated
by the Company at any time, without the payment of any penalty, by vote of a
majority of the entire Board of Directors of the Company or by a vote of a
"majority of the outstanding voting securities" of such Funds on 60 days'
written notice to CFG, or by CFG at any time, without the payment of any
penalty, on 90 days' written notice to the Company. This Agreement will
automatically and immediately terminate in the event of its "assignment." (As
used in this Agreement, the terms "majority of the outstanding voting
securities," "interested person" and "assignment" shall have the same meanings
as such terms have in the 1940 Act.)
VII. AMENDMENT OF THIS AGREEMENT
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.
VIII. NOTICES
Notices of any kind to be given to the Company hereunder by
CFG shall be in writing and shall be duly given if mailed or delivered to the
Company at Association of American Universities, Xxx XxXxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxxxx X. Pings, President, with a copy to
Suite 1100, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: W. Xxxxx XxXxxxxx, III, Secretary, or at such other address or to
such individual as shall be so specified by the Company to CFG. Notices of any
kind to be given to CFG hereunder by the Company shall be in writing and shall
be duly given if mailed or delivered to CFG at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Executive Vice President
and Chief Operating Officer, or at such other address or to such individual as
shall be so specified by CFG to the Company.
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IX. MISCELLANEOUS
The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby.
Subject to the provisions of Section VI hereof, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and shall be governed by New York law; provided, however, that
nothing herein shall be construed in a manner inconsistent with the 1940 Act or
any rule or regulation of the Commission thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
PACIFIC HORIZON FUNDS, INC.
By:/s/ Xxxxxxxxx X. Pings
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Xxxxxxxxx X. Pings
President
Attest: /s/ W. Xxxxx XxXxxxxx, III
--------------------------
Secretary
CONCORD FINANCIAL GROUP, INC.
By:/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Executive Vice President
and Chief Operating Officer
Attest: /s/ W. Xxxxx XxXxxxxx, III
--------------------------
Secretary
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