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EXHIBIT 6
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this ___ day of
__________, 1997 between PACIFIC INNOVATIONS TRUST, a Delaware Business Trust
(herein called the "Company"), and BISYS FUND SERVICES LIMITED PARTNERSHIP, an
Ohio limited partnership (herein called "Distributor").
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: Money Market Fund, Intermediate Bond Fund, Capital
Income Fund, Blue Chip Fund, Mid-Cap Equity Fund, Aggressive Growth Fund, and
International Equity Fund (each individually a "Fund" and collectively the
"Funds"); and
WHEREAS, pursuant to a Management Agreement of even date herewith
between the Company and Bank of America National Trust and Savings Association
(the "Manager"), the Company has retained the Manager to provide management
services to the Funds; and
WHEREAS, the Company desires to retain Distributor as distributor
for the Funds to provide for the sale, distribution and redemption of shares of
beneficial interest of the Funds (herein collectively called "Shares"), and
Distributor 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:
I. DELIVERY OF DOCUMENTS
The Company has delivered to Distributor copies of each of the
following documents and shall deliver to it all future amendments and
supplements thereto, if any:
(a) The Company's Declaration of Trust and all amendments
thereto (such Declaration of Trust, as presently in effect and as it shall from
time to time be amended, herein called the "Company's Declaration");
(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 Trustees of the Company
authorizing the execution and delivery of this Agreement;
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(d) 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 the Funds (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
Distributor as Distributor of the Funds' Shares and Distributor hereby accepts
such appointment and agrees to render the services and duties set forth in this
Section II. The Distributor shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or
authorized by the Board of Trustees of the Company from time to time, have no
authority to act for or represent the Company in any way or otherwise be deemed
its agent. The services furnished by the Distributor hereunder are not deemed
exclusive, and the Distributor shall be free to furnish similar services to
others so long as its services under this Agreement are not impaired thereby.
2. SERVICES AND DUTIES.
(a) The Company agrees to sell through Distributor,
as agent, from time to time during the term of this Agreement, Shares of the
Funds upon the terms and at the current offering price as described in the
applicable Prospectus. Distributor shall act only on its own behalf as
principal in making agreements for the sale and redemption of Shares, and shall
sell Shares only at the offering price thereof as set forth in the applicable
Prospectus. Distributor 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, Distributor shall act in conformity with the Company's
Declaration, Bylaws and Prospectuses and with the instructions and directions
of the Board of Trustees of the
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Company, and shall 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, Distributor 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. The Company shall
furnish from time to time, for use in connection with the sale of the Shares,
such information with respect to the Funds and the Shares as Distributor may
reasonably request. The Company shall also furnish Distributor upon request
with: (a) unaudited semi-annual statements of the Funds' books and accounts
prepared by the Company, (b) a monthly itemized list of the securities in the
Funds, (c) monthly balance sheets as soon as practicable after the end of each
month, and (d) from time to time such additional information regarding the
financial condition of the Funds as Distributor may reasonably request.
(c) Distributor shall 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 Distributor 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.
(d) The Company, or any agent of the Company
designated in writing by the Company, shall be promptly advised of all purchase
orders for Shares received by the Distributor.
(e) The Distributor shall provide the services of
certain persons who may be appointed as officers of the Company by the
Company's Board of Trustees.
3. SALES AND REDEMPTIONS.
(a) Shares of the Company are to be sold by the
Distributor to shareholders at the offering price as set forth in the
Prospectuses then in effect.
(b) 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
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as set forth in subsection 2(c) of Section II hereof or in any other agreement
entered into by the Company.
(c) 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 Distributor 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.
Distributor 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 Distributor in connection with
the sale of the Shares as contemplated in this Agreement.
(d) Any of the outstanding Shares of the Company may
be tendered for redemption at any time, and the Company agrees to repurchase or
redeem the Shares so tendered in accordance with the Company's Declaration,
Bylaws and Prospectuses. The price to be paid to redeem or repurchase the
Shares shall be equal to the net asset value per Share determined as set forth
in the applicable Prospectus (the "redemption price"). All payments by the
Company hereunder shall be made in the manner set forth in Section 3(e) below.
(e) The Company (or its agent) shall pay the total
amount of the redemption price pursuant to the instructions of the Distributor
on or before the seventh calendar day subsequent to the Company (or its agent)
having received the notice of redemption in proper form. The proceeds of any
redemption of shares shall be paid by the Company (or its agent) to or for the
account of the redeeming shareholder, in each case in accordance with the
applicable provisions of the applicable Prospectus.
(f) 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").
(g) The Company reserves the right to reject any
order for Shares, but shall not do so arbitrarily or without reasonable cause.
III. LIMITATIONS OF LIABILITY
Distributor 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
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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
Distributor shall 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 Distributor'S inquiries concerning investment in the
Company, and shall not use 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 Distributor may be exposed to civil or
criminal contempt proceedings for failure to comply, when Distributor is
requested to divulge such information by duly constituted authorities, or when
Distributor is so requested by the Company.
V. INDEMNIFICATION
1. COMPANY REPRESENTATIONS. The Company represents and
warrants to Distributor that (a) it is duly organized as a Delaware business
trust and is and at all times will remain duly authorized to enter into and
perform this Agreement, and (b) 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 Distributor
expressly for use in the Registration Statement or Prospectuses.
2. DISTRIBUTOR REPRESENTATIONS. Distributor represents and
warrants to the Company that (a) it is duly organized as an Ohio limited
partnership and is and at all times will remain duly authorized and licensed to
carry out its services as contemplated herein and (b) at all times any written
information furnished to the Company by or on behalf of Distributor expressly
for use in the Registration Statement or Prospectuses 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.
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3. COMPANY INDEMNIFICATION. The Company shall indemnify,
defend and hold harmless Distributor, its several officers and partners, and
any person who controls Distributor 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 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 shall reimburse
Distributor, its several officers and partners, and any person who controls
Distributor 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; 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 Distributor specifically for
inclusion therein.
The Company shall not indemnify any person pursuant to this
subsection 3 of Section VI hereof 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 trustees 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 of
Section VI hereof, 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
trustees of the
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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. DISTRIBUTOR INDEMNIFICATION. Distributor shall indemnify,
defend and hold harmless the Company, each Fund, the Company's several officers
and trustees 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 out
of, or are based upon, any breach of its representations and warranties in
subsection 2 of Section VI 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 trustees by or on
behalf of and with respect to Distributor specifically for inclusion therein,
and shall reimburse the Company, each Fund, the Company's several officers and
trustees, 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 subsection 3 or 4 of
Section VI 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
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 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.
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6. NAMES. The name "Pacific Innovations Trust, a Delaware
Business Trust" refers to the trust created and the trustees, as trustees but
not individually or personally, acting from time to time under a Declaration of
Trust dated September 25, 1996, as amended, which is hereby referred to and a
copy of which is on file at the principal office of the Company. The trustees,
officers, employees and agents of the Company shall not personally be bound by
or liable under any written obligation, contract, instrument, certificate or
other interest or undertaking of the Company made by the trustees or by an
officer, employee or agent of the Company, in his or her capacity as such, nor
shall resort be had to their private property for the satisfaction of any
obligation or claim thereunder. All persons dealing with any series or class
of shares of the Company may enforce claims against the Company only against
the assets belonging to such series or class.
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 ______________, 1998. 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 Trustees
of the Company who are not parties to this Agreement or "interested persons" of
any such party, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Board of Trustees 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 Trustees of the Company or by a vote
of a "majority of the outstanding voting securities" of such Funds on sixty
(60) days' prior written notice to Distributor, or by Distributor at any time,
without the payment of any penalty, on sixty (60) days' prior written notice to
the Company. This Agreement shall 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
whom an enforcement of the change, waiver, discharge or termination is sought.
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VIII. NOTICES
Notices of any kind to be given to the Company hereunder by
Distributor shall be in writing and shall be duly given if mailed or delivered
to the Company at:
Pacific Innovations Trust,
a Delaware Business Trust
c/o PFPC Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
With a copy to
Xxxxx X'Xxxxx, Esq.
Vedder, Price, Xxxxxxx & Kammholz
000 X. XxXxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Notices of any kind to be given to Distributor hereunder by the
Company shall be in writing and shall be duly given if mailed or delivered to
Distributor at:
BISYS Fund Services
Limited Partnership
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
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 VII 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 (without regard to
principles of conflicts of 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.
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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 INNOVATIONS TRUST, A
DELAWARE BUSINESS TRUST
By __________________________
__________________________
President
Attest: _____________________
_____________________
Secretary
BISYS FUND SERVICES LIMITED
PARTNERSHIP
By: BISYS FUND SERVICES, INC.,
its General Partner
By: __________________________
__________________________
Chief Executive Officer
Attest: _____________________
_____________________
Secretary
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