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Exhibit (6)(a)
THE ARCH FUND(R), INC.
DISTRIBUTION AGREEMENT
Agreement dated October 1, 1993 between THE ARCH FUND, INC., a
Maryland corporation (the "Company") and The Winsbury Company Limited
Partnership, a limited partnership organized under the laws of Ohio (the
"Distributor").
WHEREAS, the Company is an open-end, diversified management
investment company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Company desires to retain the Distributor as its
distributor to provide for the sale and distribution of each class of shares of
common stock ("shares") in each of the Company's investment portfolios
(individually, a "Portfolio," collectively, the "Portfolios") as listed on
Appendix A (as such Appendix may, from time to time, be supplemented (or
amended)), and the Distributor is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth and intending to be legally bound, the parties hereto agree
as follows:
1. APPOINTMENT OF DISTRIBUTOR. The Company hereby appoints the
Distributor as distributor of each class of shares in each of the Company's
Portfolios on the terms and for the period set forth in this Agreement. The
Distributor hereby accepts such appointment and agrees to render the services
and duties set forth in Section 3 below. In the event that the Company
establishes additional classes or investment portfolios other than the
Portfolios listed on Appendix A with respect to which it desires to retain the
Distributor to act as distributor hereunder, the Company shall notify the
Distributor, whereupon such Appendix A shall be supplemented (or amended) and
such portfolio shall become a Portfolio hereunder and shall be subject to the
provisions of this Agreement to the same extent as the Portfolios (except to the
extent that said provisions may be modified in writing by the Company and
Distributor at the time).
2. DELIVERY OF DOCUMENTS. The Company has furnished the
Distributor with copies, properly certified or authenticated, of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
a. The Company's Articles of Incorporation, filed with the
Secretary of State of the State of Maryland on September 9, 1982, as amended and
supplemented (the "Charter");
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b. The Company's By-Laws, as amended ("By- Laws");
c. Resolutions of the Company's Board of Directors authorizing
the execution and delivery of this Agreement;
d. The Company's most recent amendment to its Registration
Statement under the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act on Form N-1A as filed with the Securities and Exchange Commission (the
"Commission") on April 30, 1993, relating to its Portfolios (the Registration
Statement, as presently in effect and as amended or supplemented from time to
time, is herein called the "Registration Statement");
e. The Company's most recent Prospectuses and Statements of
Additional Information and all amendments and supplements thereto (such
Prospectuses and Statements of Additional Information and supplements thereto,
as presently in effect and as from time to time amended and supplemented, are
herein called the "Prospectuses");
f. The Company's Amended and Restated Administrative Services
Plans for Trust shares, Institutional shares or Investor shares, respectively
(non 12b-1 Plans), and related forms of Servicing Agreements and the
Distribution and Services Plan for Investor shares (Rule 12b-1 Plan) and related
Servicing Agreements;
g. The following agreements of the Company: the Amended and
Restated Advisory Agreement with Mississippi Valley Advisors Inc. dated April 1,
1991, as amended as of September 27, 1991, as of April 1, 1992, and as of April
1, 1993 (the "Advisory Agreement"); the Administration Agreement with The
Winsbury Service Corporation dated October 1, 1993; and the Transfer Agency
Agreement with The Winsbury Service Corporation dated October 1, 1993; and the
Custodian Agreement with Mercantile Bank of St. Louis National Association dated
as of April 1, 1992, as amended as of April 1, 1993; and
h. Before entering into a transaction regulated by the
Commodity Futures Trading Commission ("CFTC"), a copy of either (i) a filed
notice of eligibility to claim the exclusion from the definition of "commodity
pool operator" contained in Section 2(s)(1)(A) of the Commodity Exchange Act
("CEA") that is provided in Rule 4.5 under the CEA, together with all
supplements as are required by the CFTC, or (ii) a letter which has been granted
the Company by the CFTC which states that the Company will not be treated as a
"pool" as defined in Section 4.10(d) of the CFTC's General Regulations, or (iii)
a letter which has been granted the Company by the CFTC which states that the
CFTC will
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not take any enforcement action if the Company does not register as a "commodity
pool operator."
3. SERVICES AND DUTIES. The Distributor enters into the following
covenants with respect to its services and duties:
a. The Distributor agrees to sell, as agent, from time to time
during the term of this Agreement, shares upon the terms and at the current
offering price as described in the Prospectuses. The Distributor will act only
on its own behalf as principal in making agreements with selected dealers. No
broker-dealer or other person which enters into a selling or Distribution
Services Agreement (under the Distribution and Services Plan) with the
Distributor shall be authorized to act as agent for the Company or its
Portfolios in connection with the offering or sale of shares to the public or
otherwise. The Distributor shall use its best efforts to sell shares of each
class of each of the Portfolios but shall not be obligated to sell any certain
number of shares.
b. The Distributor shall prepare or review (with the review
and advice of counsel to the Company), provide advice with respect to, and file
with the federal and state agencies or other organization as required by
federal, state, and other applicable laws and regulations, all sales literature
(advertisements, brochures and shareholder communications) for each of the
Portfolios and any class of shares thereof.
c. In performing all of its services and duties as
Distributor, the Distributor will act in conformity with the Charter, By-Laws,
Prospectuses and resolutions and other instructions of the Company's Board of
Directors and will comply with the requirements of the 1933 Act, the Securities
Exchange Act of 1934, the 1940 Act and all other applicable federal or state
law.
d. The Distributor will bear the cost of (i) printing and
distributing any Prospectuses (including any supplement thereto) to persons who
are not shareholders, and (ii) preparing, printing and distributing any
literature, advertisement or material which is primarily intended to result in
the sale of shares; PROVIDED, HOWEVER, that the Distributor shall not be
obligated to bear the expenses incurred by the Company in connection with the
preparation and printing of any amendment to any Registration Statement or
Prospectuses necessary for the continued effective registration of the shares
under the 1933 Act and state securities laws and the distribution of any such
document to existing shareholders of the Company's Portfolios.
e. The Company shall have the right to suspend the sale of
shares at any time in response to conditions in the
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securities markets or otherwise, and to suspend the redemption of shares of any
Portfolio at any time permitted by the 1940 Act or the rules and regulations of
the Commission ("Rules").
f. The Company reserves the right to reject any order for
shares but will not do so arbitrarily or without reasonable cause.
4. FORFEITURE OF SALES CHARGES. If any shares sold by the
Distributor under the terms of this Agreement are redeemed or repurchased by the
Portfolio or by the Distributor as agent or are tendered for redemption within
seven business days after the date of confirmation of the original purchase of
said shares, the Distributor 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 the Distributor to broker-dealers or other persons
shall be repayable to the Company only to the extent recovered by the
Distributor from the broker-dealer or other person concerned. The Distributor
shall include in the form 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 the Distributor as agent (or tendered for
redemption) within seven business days after the date of confirmation of such
initial purchases.
5. LIMITATIONS OF LIABILITY. The Distributor shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the
Company in connection with the matters to which this Agreement relates, except a
loss resulting from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Distributor
agrees on behalf of itself and its partners and employees to treat
confidentially and as proprietary information of the Company all records and
other information relative to the Company and its Portfolios and prior, present
or potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
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 the
Distributor may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Company.
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7. INDEMNIFICATION.
a. The Company represents and warrants to the Distributor that
the Registration Statement contains, and that the Prospectuses at all times will
contain, all statements required by the 1933 Act and the Rules of the
Commission, 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 Section 7 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 the Distributor, the Company's administrator or the Company's transfer
agent expressly for use in the Registration Statement or Prospectuses.
b. The Company on behalf of each Portfolio agrees that each
Portfolio will indemnify, defend and hold harmless the Distributor, its several
partners and any person who controls the 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 the Distributor, its several partners
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, 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 with respect to such Portfolio or are based upon information
furnished by or on behalf of the Company with respect to such Portfolio 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 the Distributor, its several partners and any person who controls
the Distributor within the meaning of Section 15 of the 1933 Act, for any legal
or other expenses reasonably incurred by the Distributor, its several partners
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, 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 or any Blue Sky application with respect to such Portfolio in
reliance upon and
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in conformity with written information furnished to the Company by or on behalf
of the Distributor, the Company's administrator or the Company's transfer agent
specifically for inclusion therein or arising out of the failure of the
Distributor to deliver a current Prospectus.
c. The Company on behalf of each Portfolio shall not indemnify
any person pursuant to this Section 7 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 or her willful misfeasance, bad
faith or gross negligence in the performance of his or her duties, or his or her
reckless disregard of any 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 the directors of the Company who are neither "interested parties" (as
defined in the 0000 Xxx) nor parties to the proceeding, or by independent legal
counsel in a written opinion.
d. The Distributor will indemnify and hold harmless the
Company and each of its Portfolios and its several officers and directors, and
any person who controls the Company 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 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, 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 the Distributor, the
Company's administrator or the Company's transfer agent specifically for
inclusion therein, and will reimburse the Company and its several officers,
directors and such controlling persons 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.
e. The obligations of each Portfolio under this Section 7
shall be the several (and not the joint or joint and several) obligation of each
Portfolio.
8. DURATION AND TERMINATION. This Agreement shall become
effective upon its execution as of the date first written
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above and, unless sooner terminated as provided herein, shall continue until
March 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 Company's Board of Directors 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 Company's
Board of Directors or by vote of a "majority of the outstanding voting
securities" of the Company, 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 or by a vote of a "majority
of the outstanding voting securities" of the Company on 60 days' written notice
to the Distributor, or by the Distributor at any time, without the payment of
any penalty, on 60 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.)
9. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which an enforcement of the
change, waiver, discharge or termination is sought.
10. NOTICES. Notices of any kind to be given to the Company
hereunder by the Distributor shall be in writing and shall be duly given if
mailed or delivered to the Company c/o Xxxxx X. Xxxxxxx, President, Washington
University, 0000 Xxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Treasurer, with a
copy to Philadelphia National Bank Building, 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 the Distributor. Notices of any kind to be given to the Distributor hereunder
by the Company shall be in writing and shall be duly given if mailed or
delivered to 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attention:
Xxxxxx X. Xxxxx, or at such other address or to such other individual as shall
be so specified by the Distributor to the Company.
11. 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
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be held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors.
12. COUNTERPARTS. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
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.
THE ARCH FUND, INC.
(SEAL) By /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
THE WINSBURY COMPANY LIMITED
PARTNERSHIP
By: The WINSBURY Corporation,
General Partner
By/s/ signature illegible
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APPENDIX A
to the
DISTRIBUTION AGREEMENT
between
The ARCH Fund, Inc.
and
The Winsbury Company Limited Partnership
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Money Market Portfolio (Trust Shares, Investor Shares and
Institutional Shares)
Treasury Money Market Portfolio (Trust Shares, Investor Shares
and Institutional Shares)
Growth & Income Equity Portfolio (Trust Shares, Investor Shares
and Institutional Shares)
Emerging Growth Portfolio (Trust Shares, Investor Shares and
Institutional Shares)
Government & Corporate Bond Portfolio (Trust Shares, Investor
Shares and Institutional Shares)
U.S. Government Securities Portfolio (Trust Shares, Investor
Shares and Institutional Shares)
Balanced Portfolio (Trust Shares, Investor Shares and
Institutional Shares)
A-1
