This Amendment to the Registration Statement has been signed
by the Boards of Trustees of the Registrant and the Portfolios
File No. 33-44579
811-6498
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------------
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [ ]
Pre-Effective Amendment No. [ ]
Post-Effective Amendment No. 32 [X]
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY
ACT OF [ ]
Amendment No. 34 [X]
PIC INVESTMENT TRUST
(Exact name of registrant as specified in charter)
300 North Lake Avenue
Pasadena, CA 91101-4106
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number (including area code): (626) 449-8500
THAD M. BROWN
Provident Investment Counsel
300 North Lake Avenue
Pasadena, CA 91101-4106
(Name and address of agent for service of process)
Approximate Date of Proposed Public Offering: As soon as practicable after the
effective date of the registration statement.
It is proposed that this filing will become effective (check appropriate box)
[X] immediately upon filing pursuant to paragraph (b)
[ ] on (Date) pursuant to paragraph (b)
[ ] 60 days after filing pursuant to paragraph (a)(i)
[ ] on (date) pursuant to paragraph (a)(i)
[ ] 75 days after filing pursuant to paragraph (a)(ii)
[ ] on (date) pursuant to paragraph (a)(ii) of Rule 485
If appropriate, check the following box
[ ] this post-effective amendment designates a new effective
date for a previously filed post-effective amendment.
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<PAGE>
Registrant incorporated herein by reference Part A of Post-Effective Amendment
No. 27 to Registrant's Registration Statement filed with the Commission on
January 15, 1999.
Registrant incorporated herein by reference Part B of Post-Effective Amendment
No. 27 to Registrant's Registration Statement filed with the Commission on
January 15, 1999.
<PAGE>
PART C
OTHER INFORMATION
ITEM 23. EXHIBITS.
(1) Declaration of Trust(1)
(2) By-Laws(1)
(3) Not applicable
(4) Management Agreement (3)
(5) Amended and Restated Distribution Agreement
(6) Not applicable
(7) Custodian Agreement(4)
(8) (i) Administration Agreement with Investment Company
Administration Corporation(1)
(ii) Administration Agreement with Provident
Investment Counsel(1)
(iii) Amendment to Administration Agreement with
Investment Company Administration, LLC
(iv) Amendment to Administration Agreement with Provident
Investment Counsel
(v) Shareholder Servicing Agreement
(vi) Contractual Waiver/Reimbursement Agreement
(9) Opinion and consent of counsel(1)
(10) Power of Attorney (11) Not applicable
(12) Investment letter(1)
(13) (i) Distribution Plan pursuant to Rule 12b-1(2)
(ii) Distribution Plan pursuant to Rule 12b-1-Funds B
(14) Not applicable
(15) Not applicable
(1) Previously filed with Post-effective Amendment No. 10 to the
Registration Statement on Form N-1A of PIC Investment Trust, File No 33-44579,
on April 4, 1996 and incorporated herein by reference.
(2) Previously filed with Post-effective Amendment No. 13 to the
Registration Statement on Form N-1A of PIC Investment Trust, File No 33-44579,
on January 17, 1997 and incorporated herein by reference.
(3) Previously filed with Post-effective Amendment No. 18 to the
Registration Statement on Form N-1A of PIC Investment Trust, File No 33-44579,
on December 21, 1997 and incorporated herein by reference.
(4) Previously filed with Post-effective Amendment No. 21 to the
Registration Statement on Form N-1A of PIC Investment Trust, File No. 33-44579,
on September 29, 1998 and incorporated herein by reference.
ITEM 24. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT.
As of March 26 1999, Registrant owned 99.9% of the outstanding Interests in
PIC Growth Portfolio, PIC Balanced Portfolio, PIC Mid Cap Portfolio and PIC
Small Cap Portfolio, all of which are trusts organized under the laws of the
State of New York and registered management investment companies.
ITEM 25. INDEMNIFICATION.
Article VI of Registrant's By-Laws states as follows:
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purpose of this
Article, "agent" means any person who is or was a Trustee, officer, employee or
other agent of this Trust or is or was serving at the request of this Trust as a
Trustee, director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise or was a
Trustee, director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor of another enterprise at the request of such
<PAGE>
predecessor entity; "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative;
and "expenses" includes without limitation attorney's fees and any expenses of
establishing a right to indemnification under this Article.
Section 2. ACTIONS OTHER THAN BY TRUST. This Trust shall indemnify any
person who was or is a party or is threatened to be made a party to any
proceeding (other than an action by or in the right of this Trust) by reason of
the fact that such person is or was an agent of this Trust, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with such proceeding, if it is determined that person acted in
good faith and reasonably believed:
(a) in the case of conduct in his official capacity as a Trustee of the
Trust, that his conduct was in the Trust's best interests, and
(b) in all other cases, that his conduct was at least not opposed to the
Trust's best interests, and
(c) in the case of a criminal proceeding, that he had no reasonable
cause to believe the conduct of that person was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interests of this
Trust or that the person had reasonable cause to believe that the person's
conduct was unlawful.
Section 3. ACTIONS BY THE TRUST. This Trust shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action by or in the right of this Trust to procure a judgment in
its favor by reason of the fact that that person is or was an agent of this
Trust, against expenses actually and reasonably incurred by that person in
connection with the defense or settlement of that action if that person acted in
good faith, in a manner that person believed to be in the best interests of this
Trust and with such care, including reasonable inquiry, as an ordinarily prudent
person in a like position would use under similar circumstances.
Section 4. EXCLUSION OF INDEMNIFICATION. Notwithstanding any provision to
the contrary contained herein, there shall be no right to indemnification for
any liability arising by reason of willful misfeasance, bad faith, gross
negligence, or the reckless disregard of the duties involved in the conduct of
the agent's office with this Trust.
No indemnification shall be made under Sections 2 or 3 of this Article:
(a) In respect of any claim, issue, or matter as to which that person
shall have bee liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from
an action taken in the person's official capacity; or
(b) In respect of any claim, issue or matter as to which that person
shall have been adjudged to be liable in the performance of that
person's duty to this Trust, unless and only to the extent that the
court in which that action was brought shall determine upon
application that in view of all the circumstances of the case, that
person was not liable by reason of the disabling conduct set forth
in the preceding paragraph and is fairly and reasonably entitled to
indemnity for the expenses which the court shall determine; or
(c) of amounts paid in settling or otherwise disposing of a threatened
or pending action, with or without court approval,
<PAGE>
or of expenses incurred in defending a threatened or pending action
which is settled or otherwise disposed of without court approval,
unless the required approval set forth in Section 6 of this Article
is obtained.
Section 5. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent of this
Trust has been successful on the merits in defense of any proceeding referred to
in Sections 2 or 3 of this Article or in defense of any claim, issue or matter
therein, before the court or other body before whom the proceeding was brought,
the agent shall be indemnified against expenses actually and reasonably incurred
by the agent in connection therewith, provided that the Board of Trustees,
including a majority who are disinterested, non-party Trustees, also determines
that based upon a review of the facts, the agent was not of the disabling
conduct referred to in Section 4 of this Article.
Section 6. REQUIRED APPROVAL. Except as provided in Section 5 of this
Article, any indemnification under this Article shall be made by this Trust only
if authorized in the specific case on a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3 of this Article and
is not prohibited from indemnification because of the disabling conduct set
forth in Section 4 of this Article, by:
(a) A majority vote of a quorum consisting of Trustees who are not
parties to the proceeding and are not interested persons of the
Trust (as defined in the Investment Company Act of 1940); or
(b) A written opinion by an independent legal counsel.
Section 7. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by this Trust before the final disposition of the
proceeding upon a written undertaking by or on behalf of the agent, to repay the
amount of the advance if it is ultimately determined that he or she is not
entitled to indemnification, together with at least one of the following as a
condition to the advance: (i) security for the undertaking; or (ii) the
existence of insurance protecting the Trust against losses arising by reason of
any lawful advances; or (iii) a determination by a majority of a quorum of
Trustees who are not parties to the proceeding and are not interested persons of
the Trust, or by an independent legal counsel in a written opinion, based on a
review of readily available facts that there is reason to believe that the agent
ultimately will be found entitled to indemnification. Determinations and
authorizations of payments under this Section must be made in the manner
specified in Section 6 of this Article for determining that the indemnification
is permissible.
Section 8. OTHER CONTRACTUAL RIGHTS. Nothing contained in this Article
shall affect any right to indemnification to which persons other than Trustees
and officers of this Trust or any subsidiary hereof may be entitled by contract
or otherwise.
Section 9. LIMITATIONS. No indemnification or advance shall be made under
this Article, except as provided in Sections 5 or 6 in any circumstances where
it appears:
(a) that it would be inconsistent with a provision of the Agreement and
Declaration of Trust of the Trust, a resolution of the shareholders,
or an agreement in effect at the time of accrual of the alleged
cause of action asserted in the proceeding in which the expenses
were incurred or other amounts were paid which prohibits or
otherwise limits indemnification; or
(b) that it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
<PAGE>
Section 10. INSURANCE. Upon and in the event of a determination by the
Board of Trustees of this Trust to purchase such insurance, this Trust shall
purchase and maintain insurance on behalf of any agent of this Trust against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such, but only to the extent that this Trust would
have the power to indemnify the agent against that liability under the
provisions of this Article and the Agreement and Declaration of Trust of the
Trust.
ITEM 26. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER.
Not applicable.
ITEM 27. PRINCIPAL UNDERWRITERS.
(a) The Registrant's principal underwriter also acts as principal
underwriter for the following investment companies:
Advisors Series Trust
Guinness Flight Investment Funds, Inc.
Fremont Mutual Funds, Inc.
Fleming Capital Mutual Fund Group, Inc.
The Purissima Fund
Professionally Managed Portfolios
Jurika & Voyles Fund Group
Kayne Anderson Mutual Funds
Masters' Select Investment Trust
O'Shaughnessy Funds, Inc.
Rainier Investment Management Mutual Funds
RNC Mutual Fund Group, Inc.
UBS Private Investor Funds
(b) The following information is furnished with respect to the officers and
directors of First Fund Distributors, Inc.:
Name and Principal Position and Offices with Position and Offices
Business Address Principal Underwriter with Registrant
- ------------------ ------------------------- --------------------
Robert H. Wadsworth President and Treasurer Assistant Secretary
4455 E. Camelback Road
Suite 261
Phoenix, AZ 85018
Eric M. Banhazl Vice President Assistant Secretary
2025 E. Financial Way
Glendora, CA 91741
Steven J. Paggioli Vice President and Assistant Secretary
915 Broadway Secretary
New York, NY 10010
(c) Not applicable.
ITEM 28. LOCATION OF ACCOUNTS AND RECORDS.
The accounts, books and other documents required to be maintained by
Registrant pursuant to Section 31(a) of the Investment Company Act of 1940 and
the rules promulgated thereunder are in the possession of Registrant and
Registrant's custodian, as follows: the documents required to be maintained by
paragraphs (4), (5), (6), (7), (10) and (11) of Rule 31a-1(b) will be maintained
by the Registrant, and all other records will be maintained by the Custodian.
ITEM 29. MANAGEMENT SERVICES.
Not applicable.
ITEM 30. UNDERTAKINGS.
The Registrant undertakes, if requested to do so by the holders of at least
10% of the Trust's outstanding shares, to call a meeting of shareholders for the
purposes of voting upon the question of removal of a director and will assist in
communications with other shareholders.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it meets all of
the requirements for effectiveness of this amendment to this registration
statement pursuant to Rule 485(b) under the Securities Act of 1933 and has duly
caused this Amendment to the Registration Statement on Form N-1A of PIC
Investment Trust to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Pasadena and State of California on the 30th day of
March, 1999.
PIC INVESTMENT TRUST
By Douglass B. Allen*
--------------------------
Douglass B. Allen
President
This Amendment to the Registration Statement on Form N-1A of PIC Investment
Trust has been signed below by the following persons in the capacities indicated
on March 30, 1999.
Douglass B. Allen* President
- ----------------------------
Douglas B. Allen
Jeffrey J. Miller* Trustee
- ----------------------------
Jeffrey J. Miller
Jettie M. Edwards* Trustee
- ----------------------------
Jettie M. Edwards
Jeffrey D. Lovell* Trustee
- ----------------------------
Jeffrey D. Lovell
Wayne H. Smith* Trustee
- ----------------------------
Wayne H. Smith
Thad M. Brown* Treasurer and Principal
- ---------------------------- Financial and Accounting
Thad M. Brown Officer
* /s/ Robert H. Wadsworth
------------------------
By: Robert H. Wadsworth
Attorney-in-fact
<PAGE>
SIGNATURES
PIC Mid Cap Portfolio has duly caused this Amendment to the Registration
Statement on Form N-1A of PIC Investment Trust to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Pasadena and State of
California on the 30th day of March, 1999.
PIC MID CAP PORTFOLIO
By Douglass B. Allen*
-----------------------
Douglass B. Allen
President
This Amendment to the Registration Statement on Form N-1A of PIC Investment
Trust has been signed below by the following persons in the capacities indicated
on March 30, 1999.
Douglass B. Allen* President of PIC
- ---------------------------- Mid Cap Portfolio
Douglass B. Allen
Jeffrey J. Miller* Trustee of
- ---------------------------- PIC Mid Cap Portfolio
Jeffrey J. Miller
Richard N. Frank* Trustee of PIC Mid Cap Portfolio
- ----------------------------
Richard N. Frank
James Clayburn LaForce* Trustee of PIC Mid Cap Portfolio
- ----------------------------
James Clayburn LaForce
Angelo R. Mozilo* Trustee of Pic Mid Cap Portfolio
- ----------------------------
Angelo R. Mozilo
Thad M. Brown* Treasurer and Principal Financial and
- ---------------------------- Accounting Officer of PIC Mid Cap
Thad M. Brown Portfolio
* /s/ Robert H. Wadsworth
------------------------
By: Robert H. Wadsworth
Attorney-in-fact
<PAGE>
SIGNATURES
PIC Balanced Portfolio has duly caused this Amendment to the Registration
Statement on Form N-1A of PIC Investment Trust to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Pasadena and State of
California on the 30th day of March, 1999.
PIC BALANCED PORTFOLIO
By Douglass B. Allen*
-----------------------
Douglass B. Allen
President
This Amendment to the Registration Statement on Form N-1A of PIC Investment
Trust has been signed below by the following persons in the capacities indicated
on March 30, 1999.
Douglass B. Allen* President of PIC Balanced Portfolio
- ----------------------------
Douglass B. Allen
Jeffrey J. Miller* Trustee of PIC Balanced Portfolio
- ----------------------------
Jeffrey J. Miller
Richard N. Frank* Trustee of PIC Balanced Portfolio
- ----------------------------
Richard N. Frank
James Clayburn LaForce* Trustee of PIC Balanced Portfolio
- ----------------------------
James Clayburn LaForce
Angelo R. Mozilo* Trustee of Pic Balanced Portfolio
- ----------------------------
Angelo R. Mozilo
Thad M. Brown* Treasurer and Principal Financial and
- ---------------------------- Accounting Officer of PIC Balanced
Thad M. Brown Portfolio
* /s/ Robert H. Wadsworth
------------------------
By: Robert H. Wadsworth
Attorney-in-fact
<PAGE>
SIGNATURES
PIC Small Cap Portfolio has duly caused this Amendment to the Registration
Statement on Form N-1A of PIC Investment Trust to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Pasadena and State of
California on the 30th day of March, 1999.
PIC SMALL CAP PORTFOLIO
By Douglass B. Allen*
-----------------------
Douglass B. Allen
President
This Amendment to the Registration Statement on Form N-1A of PIC Investment
Trust has been signed below by the following persons in the capacities indicated
on March 30, 1999.
Douglass B. Allen* President of PIC Small Cap Portfolio
- ----------------------------
Douglass B. Allen
Jeffrey J. Miller* Trustee of PIC Small Cap Portfolio
- ----------------------------
Jeffrey J. Miller
Richard N. Frank* Trustee of PIC Small Cap Portfolio
- ----------------------------
Richard N. Frank
James Clayburn LaForce* Trustee of PIC Small Cap Portfolio
- ----------------------------
James Clayburn LaForce
Angelo R. Mozilo* Trustee of PIC Small Cap Portfolio
- ----------------------------
Angelo R. Mozilo
Thad M. Brown* Treasurer and Principal Financial and
- ---------------------------- Accounting Officer of PIC Small Cap
Thad M. Brown Portfolio
* /s/ Robert H. Wadsworth
------------------------
By: Robert H. Wadsworth
Attorney-in-fact
<PAGE>
SIGNATURES
PIC Growth Portfolio has duly caused this Amendment to the Registration
Statement on Form N-1A of PIC Investment Trust to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Pasadena and State of
California on the 30th day of March, 1999.
PIC GROWTH PORTFOLIO
By Douglass B. Allen*
-----------------------
Douglass B. Allen
President
This Amendment to the Registration Statement on Form N-1A of PIC
Investment Trust has been signed below by the following persons in the
capacities indicated on March 30, 1999.
Douglass B. Allen* President of PIC Growth Portfolio
- ----------------------------
Douglass B. Allen
Jeffrey J. Miller* Trustee of PIC Growth Portfolio
- ----------------------------
Jeffrey J. Miller
Richard N. Frank* Trustee of PIC Growth Portfolio
- ----------------------------
Richard N. Frank
James Clayburn LaForce* Trustee of PIC Growth Portfolio
- ----------------------------
James Clayburn LaForce
Angelo R. Mozilo* Trustee of PIC Growth Portfolio
- ----------------------------
Angelo R. Mozilo
Thad M. Brown* Treasurer and Principal Financial and
- ---------------------------- Accounting Officer of PIC Growth
Thad M. Brown Portfolio
* /s/ Robert H. Wadsworth
------------------------
By: Robert H. Wadsworth
Attorney-in-fact
<PAGE>
EXHIBITS
Number Description
------ -----------
99.B5 Amended and Restated Distribution Agreement
99.B8.iii Amendment to Administration Agreement
99.B8.iv Amendment to Administration Agreement
99.B8.v Shareholder Servicing Agreement
99.B8.vi Contractual Waiver/Reimbursement Agreement
99.B10 Power of Attorney
99.B13.ii Distribution Plan-Funds B
PIC INVESTMENT TRUST
Amended and Restated Distribution Agreement
Agreement made as of March 31, 1999, between PIC Investment Trust, a
registered investment company (the "Trust") and First Fund Distributors, Inc.
(the "Distributor").
WITNESSETH
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as a diversified, open-end,
management investment company and it is in the interest of the Trust to offer
its shares for sale continuously;
WHEREAS, the shares of beneficial interest of the Trust are divided into
separate series or funds (each such existing or future fund is hereinafter
referred to as a "Fund"), each of which is, or will be, established by
resolution of the Trustees of the Trust, and the Trustees may from time to time
terminate any such Fund;
WHEREAS, the Distributor is a broker-dealer registered under the Securities
Exchange Act of 1934, as amended, and a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and is engaged in the business
of selling shares of registered investment companies either directly or through
other broker-dealers;
WHEREAS, the Trust and the Distributor wish to enter into an agreement with
each other, with respect to the continuous offering of the shares of the Trust
and each Fund thereof from and after the date hereof in order to promote the
growth of the Trust and facilitate the distribution of its shares.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor
The Trust hereby appoints the Distributor as the principal underwriter and
distributor of the shares of the Trust to sell shares of each Fund to the public
and the Distributor hereby accepts such appointment and agrees to act hereunder.
The Trust hereby agrees during the term of this Agreement to sell shares of the
Trust to the Distributor on the terms and conditions set forth below.
1
<PAGE>
Section 2. Exclusive Nature of Duties
The Distributor shall be the exclusive representative of the Trust to act
as principal underwriter and distributor of the Trust's shares, except that:
2.1 The exclusive rights granted to the Distributor to purchase shares from
the Trust shall not apply to shares of the Trust issued in connection with the
merger or consolidation of any other investment company or personal holding
company with the Trust or the acquisition by purchase or otherwise of all (or
substantially all) the assets or the outstanding shares of any such company by
the Trust.
2.2 Such exclusive rights shall not apply to shares issued by the Trust
pursuant to reinvestment of dividends or capital gains distributions or through
the exercise of any conversion feature or exchange privilege.
2.3 Such exclusive rights shall not apply to shares issued by the Trust
pursuant to any reinstatement privilege afforded redeeming shareholders.
Section 3. Purchase of Shares from the Trust
3.1 The Distributor shall have the right to buy from the Trust the shares
needed, but not more than the shares needed (except for clerical errors in
transmission) to fill unconditional orders for shares placed with the
Distributor by investors or registered and qualified securities dealers and
other financial institutions ("selected dealers"). The price which the
Distributor shall pay for the shares so purchased from the Trust shall be the
net asset value, determined as set forth in the Prospectus of each Fund. The
term "Prospectus" shall mean the Prospectus and Statement of Additional
Information for each Fund included as part of the Trust's Registration
Statement, as such Prospectus and Statement of Additional Information may be
amended or supplemented from time to time, and the term "Registration Statement"
shall mean the Registration Statement filed by the Trust with the Securities and
Exchange Commission (the "Commission") and effective under the Securities Act of
1933, as amended ("Securities Act"), and the Investment Company Act, as such
Registration Statement is amended from time to time.
3.2 The shares are to be resold by the Distributor or selected dealers, as
described in Section 6.4 hereof, to investors at the offering price as set forth
in the Prospectus.
3.3 The Trust shall have the right to suspend the sale of its shares at
times when redemption is suspended pursuant to the conditions in Section 4.3
hereof or at such other times as may be determined by the Trustees. The Trust
shall also have the right to suspend the sale of its shares if a banking
moratorium shall have been declared by federal or New York authorities.
2
<PAGE>
3.4 The Trust, or any agent of the Trust designated in writing by the
Trust, shall be promptly advised of all purchase orders for shares received by
the Distributor. Any order may be rejected by the Trust; provided, however, that
the Trust will not arbitrarily or without reasonable cause refuse to accept or
confirm orders for the purchase of shares. The Trust (or its agent) will confirm
orders upon their receipt, will make appropriate book entries and upon receipt
by the Trust (or its agent) of payment therefor, will deliver deposit receipts
for such shares pursuant to the instructions of the Distributor. Payment shall
be made to the Trust in New York Clearing House funds or federal funds. The
Distributor agrees to cause such payment and such instructions to be delivered
promptly to the Trust (or its agent).
Section 4. Repurchase or Redemption of Shares by the Trust
4.1 Any of the outstanding shares may be tendered for redemption at any
time, and the Trust agrees to repurchase or redeem the shares so tendered in
accordance with its Declaration of Trust, as amended from time to time, and in
accordance with the applicable provisions of the Prospectus. The price to be
paid to redeem or repurchase the shares shall be equal to the net asset value
determined as set forth in the Prospectus. All payments by the Trust hereunder
shall be made in the manner set forth in Section 4.2 below.
4.2 The Trust shall pay the total amount of the redemption price as defined
in the above paragraph pursuant to the instructions of the Distributor on or
before the seventh calendar day subsequent to its having received the notice of
redemption in proper form. The proceeds of any redemption of shares shall be
paid by the Trust as follows: (i) in the case of shares subject to a contingent
deferred sales charge ("CDSC"), any applicable CDSC shall be paid to, for the
account of, or at the direction of, the Distributor, and the balance shall be
paid to or for the account of the redeeming shareholder, in each case in
accordance with applicable provisions of the Prospectus; and (ii) in the case of
all other shares, proceeds shall be paid to or for the account of the redeeming
shareholder, in each case in accordance with applicable provisions of the
Prospectus.
4.3 Redemption of shares or payment may be suspended at times when the New
York Stock Exchange is closed for other than customary weekends and holidays,
when trading on said Exchange is restricted, when an emergency exists as a
result of which disposal by the Trust of securities owned by it is not
reasonably practicable or it is not reasonably practicable for the Trust fairly
to determine the value of its net assets, or during any other period when the
Commission, by order, so permits.
Section 5. Duties of the Trust
5.1 Subject to the possible suspension of the sale of shares as provided
herein, the Trust agrees to sell its shares so long as it has shares available.
3
<PAGE>
5.2 The Trust shall furnish the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of shares, and this shall
include one certified copy, upon request by the Distributor, of all financial
statements prepared for the Trust by independent public accountants. The Trust
shall make available to the Distributor such number of copies of its Prospectus
and annual and interim reports as the Distributor shall reasonably request.
5.3 The Trust shall take, from time to time, but subject to the necessary
approval of the Trustees and the shareholders, all necessary action to fix the
number of authorized shares and such steps as may be necessary to register the
same under the Securities Act, to the end that there will be available for sale
such number of shares as the Distributor reasonably may expect to sell. The
Trust agrees to file from time to time such amendments, reports and other
documents as may be necessary in order that there will be no untrue statement of
a material fact in the Registration Statement, or necessary in order that there
will be no omission to state a material fact in the Registration Statement which
omission would make the statements therein misleading.
5.4 The Trust shall use its best efforts to make such filings or shall be
required to qualify and maintain the qualification of any of its shares for sale
under the securities laws of such states as the Distributor and the Trust may
jointly agree upon; provided that the Trust shall not be required to amend its
Declaration of Trust or By-Laws to comply with the laws of any state, to
maintain an office in any state, to change the terms of the offering of its
shares in any state from the terms set forth in its Registration Statement, to
qualify as a foreign corporation in any state or to consent to service of
process in any state other than with respect to claims arising out of the
offering of its shares. Any such qualification may be withheld, terminated or
withdrawn by the Trust at any time in its discretion. As provided in Section 9
hereof, the expense of qualification and maintenance of qualification shall be
borne by the Trust. The Distributor shall furnish such information and other
material relating to its affairs and activities as may be required by the Trust
in connection with such qualifications.
Section 6. Duties of the Distributor
6.1 The Distributor shall devote reasonable time and effort to effect sales
of shares of the Trust, but shall not be obligated to sell any specific number
of shares. Sales of the shares shall be on the terms described in the
Prospectus. The Distributor may enter into like arrangements with other
investment companies.
6.2 In selling the shares, the Distributor shall use its best efforts in
all respects duly to conform with the requirements of all federal and state laws
relating to the sale of such securities. Neither the Distributor nor any
selected dealer nor any other person is authorized by the Trust to give any
information or to make any representations, other than those contained in the
4
<PAGE>
Registration Statement or Prospectus and any sales literature approved by
appropriate officers of the Trust.
6.3 The Distributor shall adopt and follow procedures for the confirmation
of sales to investors and selected dealers, the collection of amounts payable by
investors and selected dealers on such sales and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD.
6.4 The Distributor shall have the right to enter into selected dealer
agreements with registered and qualified securities dealers and other financial
institutions of its choice for the sale of shares, provided that the Trust shall
approve the forms of such agreements. Within the United States, the Distributor
shall offer and sell shares only to such selected dealers as are members in good
standing of the NASD. Shares sold to selected dealers shall be for resale by
such dealers only at the offering price determined as set forth in the
Prospectus.
6.5 In performance its duties hereunder, the Distributor shall be an
independent contractor and neither the Distributor, nor any of its officers,
directors, employees, or representatives is or shall be an employee of the Trust
in the performance of the Distributor's duties hereunder. The Distributor shall
be responsible for its own conduct and the employment, control, and conduct of
its agents and employees and for injury to such agents or employees or to others
through its agents or employees. The Distributor assumes full responsibility for
its agents and employees under applicable statutes and agrees to pay all
employee taxes thereunder.
Section 7. Payments to the Distributor
7.1 With respect to classes and/or series of shares which impose a
front-end sales charge, the Distributor shall receive and may retain any portion
of any front-end sales charge which is imposed on such sales and not reallocated
to selected dealers as set forth in the Prospectus, subject to the limitations
of the Conduct Rules of the NASD. Payment of these amounts to the Distributor is
not contingent upon the adoption or continuation of any Plan of Distribution
pursuant to Rule 12b-1 under the Investment Company Act ( a "Plan").
7.2 With respect to classes and/or series of shares subject to a CDSC (the
"CDSC shares"), the Distributor shall receive and may retain its Allocable
Portion (as hereinafter defined) of any CDSC which is imposed on such sales as
set forth in the Prospectus, subject to the limitations of the Conduct Rules of
the NASD. Payment of these amounts to the Distributor is not contingent upon the
adoption or continuation of any Plan.
Section 8. Payment of the Distributor Under Any Plan
5
<PAGE>
8.1 If a Fund has a Plan that provides for payments to the Distributor then
the Trust shall pay to the Distributor as compensation for services under any
Plan adopted by the Fund and this Agreement (without double counting) a
distribution fee (the "Distribution Fee") with respect to the Trust's shares as
described in each respective Fund's Plan and this Agreement.
With respect to CDSC shares, in consideration of the Distributor's
services as principal distributor of the CDSC shares pursuant to this Agreement
and each applicable Fund's Plan, the Trust agrees to pay to, for the account of,
or at the direction of, the Distributor its Allocable Portion of the
Distribution Fee which shall accrue daily at the rate of 0.75% per annum of the
average daily net assets attributable to CDSC shares of any applicable Fund, and
be payable monthly.
8.2 So long as a Plan or any amendment thereto is in effect, the
Distributor shall inform the Trustees of the commissions with respect to the
Plan to be paid by the Distributor to account executives of the Distributor and
to broker-dealers and financial institutions which have dealer agreements with
the Distributor. So long as a Plan (or any amendment thereto) is in effect, at
the request of the Trustees or any agent or representative of the Fund, the
Distributor shall provide such additional information as may reasonably be
requested concerning the activities of the Distributor hereunder and the costs
incurred in performing such activities with respect to the relevant class and/or
series of shares.
Section 9. Allocation of Expenses
9.1 The Trust shall bear all costs and expenses of the continuous offering
of its shares (except for those costs and expenses born by the Distributor or
another party pursuant to any Plan and subject to the requirements of Rule 12b-1
under the Investment Company Act), including fees and disbursements of its
counsel and auditors, in connection with the preparation and filing of any
required Registration Statements and/or Prospectuses under the Investment
Company Act or the Securities Act, and all amendments and supplements thereto,
and preparing and mailing annual and periodic reports and proxy materials to
shareholders (including but not limited to the expense of setting in type any
such Registration Statements, Prospectuses, annual or periodic reports or proxy
materials). The Trust shall also bear the costs and expenses of qualification of
the shares for sale, and, if necessary or advisable in connection therewith, of
qualifying the Trust as a broker or dealer, in such states of the United States
or other jurisdictions as shall be selected by the Trust and the Distributor
pursuant to Section 5.4 hereof and the cost and expense payable to each such
state for continuing qualification therein until the Trust decides to
discontinue such qualification pursuant to Section 5.4 hereof. The Trust shall
also bear the expenses it assumes pursuant to any Plan, so long as the Plan is
in effect.
6
<PAGE>
Section 10. Indemnification
(a) Indemnification of Trust. The Distributor agrees to indemnify and
hold harmless the Trust and each of its present or former Trustees, officers,
employees and representatives and each person, if any, who controls or
previously controlled the Trust within the meaning of Section 15 of the
Securities Act against any and all losses, liabilities, damages, claims or
expenses (including the reasonable costs of investigating or defending any
alleged loss, liability, damage, claims or expense and reasonable legal counsel
fees incurred in connection therewith) to which the Trust or any such person may
become subject under the Securities Act, under any other statute, at common law,
or otherwise, arising out of the acquisition of any shares by any person which
(i) may be based upon any wrongful act by the Distributor or any of the
Distributor's directors, officers, employees or representatives, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement, Prospectus, shareholder report or other
information covering shares filed or made public by the Trust or any amendment
thereof or supplement thereto, 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 if such statement or omission was made in
reliance upon information furnished to the Trust by the Distributor. In no case
(i) is the Distributor's indemnity in favor of the Trust, or any person
indemnified to be deemed to protect the Trust or such indemnified person against
any liability to which the Trust or such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of his duties or by reason of his reckless disregard of his obligations and
duties under this Agreement or (ii) is the Distributor to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Trust or any person indemnified unless the Trust or such person, as
the case may be, shall have notified the Distributor in writing of the claim
within a reasonable time after the summons or other first written notification
giving information of the nature of the claim shall have been served upon the
Trust or upon such person (or after the Trust or such person shall have received
notice of such service on any designated agent). However, failure to notify the
Distributor of any such claim shall not relieve the Distributor from any
liability which the Distributor may have to the Trust or any person against whom
such action is brought otherwise than on account of the Distributor's indemnity
agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense, or, if the Distributor so elects, to assume the defense of any
suit brought to enforce any such claim, but, if the Distributor elects to assume
the defense, such defense shall be conducted by legal counsel chosen by the
Distributor and satisfactory to the Trust or to the persons indemnified pursuant
to the foregoing paragraph. In the event that the Distributor elects to assume
the defense of any such suit and retain such legal counsel, the Trust or the
persons indemnified pursuant to the foregoing paragraph shall bear the fees and
expenses of any additional legal counsel retained by them. If the Distributor
does not elect to assume the defense of any such suit, the Distributor will
reimburse the Trust and the persons indemnified pursuant to the foregoing
paragraph for the reasonable fees and expenses of any legal counsel retained by
them. The Distributor agrees to promptly notify the Trust of the commencement of
7
<PAGE>
any litigation of proceedings against it or any of its officers, employees or
representatives in connection with the issue or sale of any shares.
(b) Indemnification of the Distributor. The Trust agrees to indemnify
and hold harmless the Distributor and each of its present or former directors,
officers, employees and representatives and each person, if any, who controls
the Distributor within the meaning of Section 15 of the Securities Act against
any and all losses, liabilities, damages, claims or expenses (including the
reasonable costs of investigating or defending any alleged loss, liability,
damage, claim or expense and reasonable legal counsel fees incurred in
connection therewith) to which the Distributor or any such person may become
subject under the Securities Act, under any other statute, at common law, or
otherwise, arising out of the acquisition of any Shares by any person which (i)
may be based upon any wrongful act by the Trust or any of the Trust's Trustees,
officers, employees or representatives acting in such capacities, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement, Prospectus, shareholder report or other
information covering shares filed or made public by the Trust or any amendment
thereof or supplement thereto, 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 unless such statement or omission was made in
reliance upon information furnished to the Trust by the Distributor. In no case
(i) is the Trust's indemnity in favor of the Distributor, or any person
indemnified to be deemed to protect the Distributor or such indemnified person
against any liability to which the Distributor or such person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of his
obligations and duties under this Agreement, or (ii) is the Trust to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against Distributor, or person indemnified unless the Distributor, or
such person, as the case may be, shall have notified the Trust in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Distributor or upon such person (or after the Distributor or
such person shall have received notice of such service on any designated agent).
However, failure to notify the Trust of any such claim shall not relieve the
Trust from any liability which the Trust may have to the Distributor or any
person against whom such action is brought otherwise than on account of the
Trust's indemnity agreement contained in this paragraph.
The Trust shall be entitled to participate, at its own expense, in the
defense or, if the Trust so elects, to assume the defense of any suit brought to
enforce any such claim, but if the Trust elects to assume the defense, such
defense shall be conducted by legal counsel chosen by the Trust and satisfactory
to the Distributor or to the persons indemnified pursuant to the foregoing
paragraph. In the event that the Trust elects to assume the defense of any such
suit and retain such legal counsel, the Distributor or the persons indemnified
pursuant to the foregoing paragraph shall bear the fees and expenses of any
8
<PAGE>
additional legal counsel retained by them. If the Trust does not elect to assume
the defense of any such suit, the Trust will reimburse the Distributor and the
persons indemnified pursuant to the foregoing paragraph for the reasonable fees
and expenses of any legal counsel retained by them. The Trust agrees to promptly
notify the Distributor of the commencement of any litigation or proceedings
against it or any of its directors, officers, employees or representatives in
connection with the issue or sale of any shares.
Section 11. Duration and Termination of this Agreement
11.1 This Agreement shall become effective as of the date first above
written and shall remain in force for two years from the date hereof and
thereafter, but only so long as such continuance is specifically approved at
least annually by (a) the Trustees of the Trust, or by the vote of a majority of
the outstanding voting securities of each relevant Fund, and (b) concurrently
with such approval by the Trustees or prior to such approval by the holders of
the outstanding voting securities of each relevant Fund, as the case may be, by
the vote of a majority of those Trustees who are not interested persons, as
defined in the Act, of the Trust and who have no direct or indirect financial
interest in the operation of any relevant Fund's Plan, any agreement related to
such Plan or this Agreement ("Qualified Trustees"), cast in person at a meeting
called for the purpose of voting upon such approval. The Distributor shall
furnish to the Trust, promptly upon its request, such information as may
reasonably be necessary to evaluate the terms of this Agreement or any
extension, renewal or amendment hereof.
11.2 This Agreement may be terminated at any time with respect to any
and/or all of the Funds, without the payment of any penalty, by a majority of
the Qualified Trustees or by vote of a majority of the outstanding voting
securities of each relevant Fund, or by the Distributor, on not more than sixty
(60) days' nor less than thirty (30) days' prior written notice to the other
party; provided that, in the case of termination by a Fund, such action shall
have been authorized by resolution of a majority of the Qualified Trustees or by
vote of a majority of the outstanding voting securities of the relevant Fund.
This Agreement shall automatically terminate in the event of its assignment.
Section 12. Amendments to this Agreement
This Agreement may be amended by the parties only if such amendment is
specifically approved by (a) the Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities of each relevant Fund, and (b) by
the vote of a majority of the Qualified Trustees cast in person at a meeting
called for the purpose of voting on such amendment.
9
<PAGE>
Section 13. Governing Law
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of California as at the time in effect and
the applicable provisions of the Investment Company Act. To the extent that the
applicable law of the State of California, or any of the provisions herein,
conflict with the applicable provisions of the Investment Company Act, the
latter shall control.
Section 14. Liabilities of the Trust
The Trust is a series trust and all debts, liabilities, obligations and
expenses of a particular Fund shall be enforceable only against the assets of
that Fund and not against the assets of any other Fund or of the Trust as a
whole. Neither the Trustees, officers, agents or shareholders of the Trust
assume any personal liability for obligations entered into on behalf of the
Trust (or a Fund thereof).
Section 15. Miscellaneous
The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Nothing herein contained shall be deemed to require the Trust to take any
action contrary to its Declaration of Trust or By-Laws, or any applicable
statutory or regulatory requirement to which it is subject or by which it is
bound, or to relieve or deprive the Board of Trustees of the Trust of
responsibility for and control of the conduct of the affairs of the Trust.
This Agreement, together with Schedule A, is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein; provided that each of the
provisions set forth in clauses (I) through (V) of the second paragraph of
Section 2 of the Plan (as in effect on the date hereof) relating to CDSC shares
of each applicable Fund, together with the related definitions, are hereby
incorporated into Section 8 hereof by reference with the same force and effect
as if set forth herein in their entirety.
10
<PAGE>
Section 16. Definition of Terms
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the Commission validly issued pursuant
to the Investment Company Act. Specifically, the terms "vote of a majority of
the outstanding voting securities," "interested persons," "assignment," and
"affiliated person," as used in Section 11 hereof, shall have the meanings
assigned to them by Section 2(a) of the Investment Company Act. In addition,
where the effect of a requirement of the Investment Company Act reflected in any
provision of this Agreement is modified by a rule, regulation or order of the
Commission, whether of special or of general application, such provision shall
be deemed to incorporate the effect of such rule, regulation or order.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year above written.
FIRST FUND DISTRIBUTORS, INC.
By: /s/Steven J. Paggioli
----------------------------
Name: Steven J. Paggioli
Title: Vice President
PIC INVESTMENT TRUST
By: /s/ Douglass B. Allen
----------------------------
Name: Douglass B. Allen
Title: President
12
<PAGE>
SCHEDULE A
TO THE
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
ALLOCATION PROCEDURES
The following relates solely to CDSC shares.
The Distributor's Allocable Portion of Distribution Fees and CDSCs in
respect of CDSC shares shall be 100% until such time as the Distributor shall
cease to serve as exclusive distributor of CDSC shares; thereafter collections
which constitute CDSCs, and Distribution Fees relating to CDSC shares shall be
allocated among the Distributor and any successor distributor ("Successor
Distributor") in accordance with this Schedule A.
Defined terms used in this Schedule A and not otherwise defined herein
shall have the meanings assigned to them in the Amended and Restated
Distribution Agreement (the "Distribution Agreement"), of which this Schedule A
is a part. As used herein the following terms shall have the meanings indicated:
"Commission Share" means each CDSC share, which is issued under
circumstances which would normally give rise to an obligation of the holder of
such share to pay a CDSC upon redemption of such share (including, without
limitation, any CDSC share issued in connection with a permitted free exchange)
and any such share shall continue to be a Commission Share of the applicable
Fund prior to the redemption (including a redemption in connection with a
permitted free exchange) or conversion of such share, even though the obligation
to pay the CDSC may have expired or conditions for waivers thereof may exist.
"Date of Original Issuance" means in respect of any Commission Share, the
date with reference to which the amount of the CDSC payable on redemption
thereof, if any, is computed.
"Free Share" means, in respect of a Fund, each CDSC share of the Fund,
other than a Commission Share (including, without limitation, any CDSC share
issued in connection with the reinvestment of dividends or capital gains).
"Inception Date" means in respect of a Fund, the first date on which the
Fund issued shares.
"Net Asset Value" means the net asset value determined as set forth in the
Prospectus of each Fund.
A-1
<PAGE>
"Omnibus Share" means, in respect of a Fund, a Commission Share or Free
Share sold by one of the selling agents listed on Exhibit I. If, subsequent to
the Successor Distributor becoming exclusive distributor of the CDSC shares, the
Distributor reasonably determines that the transfer agent is able to track all
Commission Shares and Free Shares sold by any of the selling agents listed on
Exhibit I in the same manner as Commission Shares and Free Shares are currently
tracked in respect of selling agents not listed on Exhibit I, then Exhibit I
shall be amended to delete such selling agent from Exhibit I so that Commission
Shares and Free Shares sold by such selling agent will no longer be treated as
Omnibus Shares.
PART I: ATTRIBUTION OF CDSC SHARES
CDSC shares which are outstanding from time to time, shall be attributed to
the Distributor and each Successor Distributor in accordance with the following
rules;
(1) Commission Shares other than Omnibus Shares:
(a) Commission Shares which are not Omnibus Shares ("Non-Omnibus Commission
Shares") attributed to the Distributor shall be those Non-Omnibus Commission
Shares the date of Original Issuance of which occurred on or after the Inception
Date of the applicable Fund and on or prior to the date the Distributor ceased
to be exclusive distributor of CDSC shares of the Fund.
(b) Non-Omnibus Commission Shares attributable to each Successor
Distributor shall be those Non-Omnibus Commission Shares the Date of Original
Issuance of which occurs after the date such Successor Distributor became the
exclusive distributor of CDSC shares of the Fund and on or prior to the date
such Successor Distributor ceased to be the exclusive distributor of CDSC shares
of the Fund.
(c) A Non-Omnibus Commission Share of a Fund issued in consideration of the
investment of proceeds of the redemption of a Non-Omnibus Commission Share of
another Fund (the "Redeeming Fund") in connection with a permitted free
exchange, is deemed to have a Date of Original Issuance identical to the Date of
Original Issuance of the Non-Omnibus Commission Share of the Redeeming Fund and
any such Commission Share will be attributed to the Distributor or Successor
Distributor based upon such Date of Original Issuance in accordance with rules
(a) and (b) above.
(2) Free Shares:
Free Shares which are not Omnibus Shares ("Non-Omnibus Free Shares") of a
Fund outstanding on any date shall be attributed to the Distributor or a
Successor Distributor, as the case may be, in the same proportion that the
Non-Omnibus Commission Shares of a Fund outstanding on such date are attributed
A-2
<PAGE>
to each on such date; provided that if the Distributor reasonably determines
that the transfer agent is able to produce monthly reports which track the Date
of Original Issuance for such Non-Omnibus Free Shares, then such Free Shares
shall be allocated pursuant to clause 1(a), (b) and (c) above.
(3) Omnibus Shares:
Omnibus Shares of a Fund outstanding on any date shall be attributed to the
Distributor or a Successor Distributor, as the case may be, in the same
proportion that the Non-Omnibus Commission Shares of the applicable Fund
outstanding on such date are attributed to it on such date; provided that if the
Distributor reasonably determines that the transfer agent is able to produce
monthly reports which track the Date of Original Issuance for the Omnibus
Shares, then the Omnibus Shares shall be allocated pursuant to clause 1(a), (b)
and (c) above.
PART II: ALLOCATION OF CDSCs
(1) CDSCs Related to the Redemption of Non-Omnibus Commission Shares:
CDSCs in respect of the redemption of Non-Omnibus Commission Shares shall
be allocated to the Distributor or a Successor Distributor depending upon
whether the related redeemed Commission Share is attributable to the Distributor
or such Successor Distributor, as the case may be, in accordance with Part I
above.
(2) CDSCs Related to the Redemption of Omnibus Shares:
CDSCs in respect of the redemption of Omnibus Shares shall be allocated to
the Distributor or a Successor Distributor in the same proportion that CDSCs
related to the redemption of Commission Shares are allocated to each thereof;
provided, that if the Distributor reasonably determines that the transfer agent
is able to produce monthly reports which track the Date of Original Issuance for
the Omnibus Shares, then the CDSCs in respect of the redemption of Omnibus
Shares shall be allocated among the Distributor and any Successor Distributor
depending on whether the related redeemed Omnibus Share is attributable to the
Distributor or a Successor Distributor, as the case may be, in accordance with
Part I above.
PART III: ALLOCATION OF DISTRIBUTION FEE
Assuming that the Distribution Fee remains constant over time so that Part
IV hereof does not become operative:
(1) The portion of the aggregate Distribution Fee accrued in respect of all
CDSC shares of a Fund during any calendar month allocable to the Distributor or
a Successor Distributor is determined by multiplying the total of such
Distribution Fee by the following fraction:
A-3
<PAGE>
(A + C)/2
(B + D)/2
where:
A= The aggregate Net Asset Value of all CDSC shares of a Fund attributed to
the Distributor or such Successor Distributor, as the case may be, and
outstanding at the beginning of such calendar month
B= The aggregate Net Asset Value of all CDSC shares of a Fund at the beginning
of such calendar month
C= The aggregate Net Asset Value of all CDSC shares of a Fund attributed to
the Distributor or such Successor Distributor, as the case may be, and
outstanding at the end of such calendar month
D= The aggregate Net Asset Value of all CDSC shares of a Fund at the end of
such calendar month
(2) If the Distributor reasonably determines that the transfer agent is
able to produce automated monthly reports which allocate the average Net Asset
Value of the Commission Shares (or all CDSC shares if available) of a Fund among
the Distributor and any Successor Distributor in a manner consistent with the
methodology detailed in Part I and Part III(1) above, the portion of the
Distribution Fee accrued in respect of all such CDSC shares of a Fund during a
particular calendar month will be allocated to the Distributor or a Successor
Distributor by multiplying the total of such Distribution Fee by the following
fraction:
(A)/(B)
where:
A= Average Net Asset Value of all such CDSC shares of a Fund for such calendar
month attributed to the Distributor or a Successor Distributor, as the case
may be
B= Total average Net Asset Value of all such CDSC shares of a Fund for such
calendar month
A-4
<PAGE>
PART IV: ADJUSTMENT OF THE DISTRIBUTOR'S ALLOCABLE PORTION AND EACH
SUCCESSOR DISTRIBUTOR'S ALLOCABLE PORTION
The parties to the Distribution Agreement recognize that, if the terms of
any distributor's contract, any distribution plan, any prospectus, the conduct
rules or any other applicable law change, which change disproportionately
reduces, in a manner inconsistent with the intent of this Distribution
Agreement, the amount of the Distributor's Allocable Portion or any Successor
Distributor's Allocable Portion had no such change occurred, the definitions of
the Distributor's Allocable Portion and/or the Successor Distributor's Allocable
Portion in respect of the CDSC shares relating to a Fund shall be adjusted by
agreement among the relevant parties provided, however, if the Distributor, the
Successor Distributors and the Company cannot agree within thirty (30) days
after the date of any such change in applicable laws or in any distributor's
contract, distribution plan, prospectus or the conduct rules, they shall submit
the question to arbitration in accordance with the commercial arbitration rules
of the American Arbitration Association and the decision reached by the
arbitrator shall be final and binding on each of them.
A-5
<PAGE>
EXHIBIT I
To Schedule A
Selling Agents
A - 6
AMENDMENT NO. 3
TO
PIC INVESTMENT TRUST ADMINISTRATION AGREEMENT
This Amendment No. 3 (the "Amendment"), dated this 31st day of March, 1999,
to the PIC Investment Trust Administration Agreement, as amended (the
"Agreement"), dated June 11, 1992, by and between PIC INVESTMENT TRUST, a trust
organized under the laws of the State of Delaware (the "Trust"), and INVESTMENT
COMPANY ADMINISTRATION, LLC, an Arizona limited liability company (the
"Administrator"). Capitalized terms used herein and not otherwise defined, shall
have the meanings ascribed to them in the Agreement.
WHEREAS, the Administrator provides certain services to the Trust, as more
fully described in the Agreement; and
WHEREAS, the Trust has organized additional series, and the parties hereto
desire to amend the Agreement so that the Agreement shall apply to all series of
the Trust.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Paragraph 1 is amended in its entirety to read as follows:
"The Trust, on behalf of each fund listed on Appendix A attached
hereto (the "Funds"), as such Appendix A may be amended from time to
time, hereby appoints the Administrator to provide certain
administrative services to the Trust, subject to the overall
supervision of the Board of Trustees of the Trust for the period and
on the terms set forth in this Agreement. Whenever this Agreement
refers to services to be performed for, or the rights of, the Trust,
such reference shall be deemed to include each Fund. The Administrator
hereby accepts such appointment and agrees during such period to
render the services herein described and to assume the obligations set
forth herein, for the compensation herein provided."
2. Paragraph 4 is amended in its entirety to read as follows:
"The Trust agrees to pay the Administrator and the Administrator
agrees to accept as full compensation for all services rendered by the
Administrator as such, an annual fee with respect to each Fund in the
amount set forth in Appendix A opposite such Fund's name."
3. Appendix A, which is attached hereto as such, is hereby added, in its
entirety, as Appendix A to the Agreement.
<PAGE>
4. Except as herein modified, all of the terms, conditions and provisions
of the Agreement as modified by this Amendment shall remain unmodified and in
full force and effect.
5. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have affixed their signatures
signifying their adoption of this Amendment.
PIC INVESTMENT TRUST
By: /s/ Douglass B. Allen
------------------------
Name: Douglass B. Allen
Title: President
INVESTMENT COMPANY ADMINISTRATION LLC
By: /s/Steven J. Paggioli
------------------------
Name: Steven J. Paggioli
Title: Executive Vice President
PIC INVESTMENT TRUST
AMENDMENT TO
ADMINISTRATION AGREEMENT
AGREEMENT, dated as of 31st day of March, 1999 by and between PIC
Investment Trust, a Delaware business trust (the "Trust") and Provident
Investment Counsel ("PIC"), a California corporation.
WHEREAS, there is an existing Administration Agreement dated June 11, 1992
(the "Agreement") between PIC Investment Trust (the "Trust") and Provident
Investment Counsel ("PIC"); and
WHEREAS, the Agreement provides for PIC to provide certain services to the
Trust, as more fully described in the Agreement; and
WHEREAS, the Trust has organized additional series;
NOW, THEREFORE, the Trust and PIC agree to amend the Agreement as follows;
1. The document attached as Appendix A to this Amendment supersedes any
and all existing fund listings and shall constitute the Appendix A to
the Agreement and
2. PIC shall render the services described in, and shall assume the
obligations set forth in, the Agreement on behalf of the funds listed
in Appendix A; and
3. the Trust shall pay PIC and PIC agrees to accept as full compensation
for the services rendered by PIC on behalf of the funds in Appendix A,
a fee, payable monthly, and computed based on the value of the total
net assets of the Trust at the annual rate of 0.20% of the average
daily net assets of such net assets.; and
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by duly authorized persons and their seals to be hereunto
affixed, all as of the day and year first above written.
<PAGE>
PIC INVESTMENT TRUST
By: /s/ Douglass B. Allen
------------------------
Name: Douglass B. Allen
PROVIDENT INVESTMENT COUNSEL
By: /s/ Douglass B. Allen
------------------------
Name: Douglass B. Allen
<PAGE>
APPENDIX A
The funds covered by this Amendment as of March 31, 1999.
Provident Investment Counsel Pinnacle Balanced Fund A
Provident Investment Counsel Pinnacle Growth Fund A
Provident Investment Counsel Pinnacle Mid Cap Fund A
Provident Investment Counsel Pinnacle Small Company Growth Fund A
Provident Investment Counsel Pinnacle Balanced Fund B
Provident Investment Counsel Pinnacle Growth Fund B
Provident Investment Counsel Pinnacle Mid Cap Fund B
Provident Investment Counsel Pinnacle Small Company Growth Fund B
Provident Investment Counsel Growth Fund I
Provident Investment Counsel Small Company Growth Fund I
Provident Investment Counsel Small Cap Growth Fund I
SHAREHOLDER SERVICING AGREEMENT
AGREEMENT, made as of this 31st day of March, 1999 by and among First Fund
Distributors Inc. (the "Distributor"), Provident Investment Counsel (the
"Management Company") and PIC Investment Trust (the "Trust") solely with respect
to the paragraphs listed on the signature page hereto, in connection with the
provision of administration, shareholder and shareholder-related services to
each fund listed on Schedule A hereto, as such Schedule A may be amended from
time to time (each, a "B Fund," and collectively, the "B Funds").
W I T N E S S E T H:
WHEREAS, the Trust engages in business as an open-end management investment
company and is registered as such under the Investment Company Act of 1940 (the
"Act"); and
WHEREAS, currently, each B Fund offers solely shares that are subject to a
contingent deferred sales charge ("CDSC shares"); and
WHEREAS, the Trust requires administration, shareholder and
shareholder-related services and the Management Company has developed the
capability to arrange for the provision of, or to provide, certain of the
services required by the Trust; and
WHEREAS, the Trust has adopted a Distribution Plan pursuant to Rule 12b-1
under the Act (the "Plan") pursuant to which the Trust pays the Distributor a
shareholder servicing fee (the "Shareholder Servicing Fee"); and
WHEREAS, the Distributor is authorized, pursuant to the Plan, to make
certain payments to other entities for providing administrative, shareholder and
shareholder-related assistance to a B Fund or its shareholders; and
WHEREAS, the Distributor desires to engage the Management Company to
provide, or arrange for the provision of, such services to each B Fund and its
shareholders and to provide, or arrange for the provision of, certain other
services which are now or may hereafter be required by the Trust on the terms
and conditions set forth in this Agreement; and
WHEREAS, the Management Company is not registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended, and is therefore not required
or permitted to perform any services that would require such registration.
NOW, THEREFORE, in consideration of the premises and the promises
hereinafter set forth, the Distributor and the Management Company agree as
follows:
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<PAGE>
1. Shareholder and Shareholders-Related Services to be Provided. The
Management Company shall provide such of the following services as are required
by the B Funds, their shareholders or shareholder representatives such as bank
trust departments and registered investment advisers ("Shareholder
Representatives");
(a) Direct administrative and shareholder services, consisting of:
(i) maintenance of shareholder accounts;
(ii) processing and/or coordinating B Fund CDSC share purchase
and redemption requests transmitted or delivered to the
office of the Management Company;
(iii) coordinating and implementing bank-to-bank wire transfers
in connection with B Fund CDSC share purchases and
redemptions;
(iv) executing orders under any offer of exchange offered by the
Trust involving concurrent purchases and redemptions of
shares of a B Fund or shares of another fund;
(v) responding to telephonic and in-person inquiries from
shareholders or Shareholder Representatives requiring
information regarding matters such as shareholder account or
transaction status, net asset value of B Fund CDSC shares, B
Fund performance, B Fund services, plans and options, B Fund
investment policies, B Fund portfolio holdings and B Fund
distributions and taxation thereof;
(vi) dealing with complaints and correspondence from shareholders
or Shareholder Representatives directed to or brought to the
attention of the Management Company;
(vii) performing sub-accounting for shareholders of record who
hold their shares for the benefit of other beneficial
owners, including establishing and maintaining accounts and
records (such as back-up withholding and tax identification
number certifications) for such beneficial owners, including
combined statements showing such beneficial owners holdings
in all B Funds combined.
(b) Such other shareholder and shareholder-related services, whether
similar to or different from those described in Subparagraph (a) and this
Subparagraph (b), each of this Paragraph 1, as the parties may from time to time
agree in writing.
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<PAGE>
2. Other Services to be Provided. The Management Company shall provide such
other services required by the Trust as the parties may from time to time agree
in writing are appropriate to be provided under this Agreement. In the event
that the Management Company provides any services to the Trust, or pays or
assumes any Trust expense, which the Management Company is not obligated to
provide, pay or assume under this Agreement, the Management Company shall not be
obligated hereby to provide the same of any similar service to the Trust or to
pay or assume the same or any similar Trust expense in the future; provided,
that nothing herein contained shall be deemed to relieve the Management Company
of any obligation to the Distributor, Trust or a B Fund under any separate
agreement or arrangement between the parties.
3. Shareholder Servicing Fees. As compensation for all services provided
and expenses paid or assumed by the Management Company under this Agreement, the
Distributor shall pay the Management Company a Shareholder Servicing Fee with
respect to each B Fund's CDSC shares, as described in each respective B Fund's
Plan and this Agreement.
4. Manner of Providing Services. The Management Company may provide
services under this Agreement through its own personnel or by purchasing such
services from a third party. If a third party is retained to provide services,
any fees payable to such third party shall be paid by the Management Company.
5. Trust Ownership of Records. All records required to be maintained and
preserved by the Trust pursuant to the provisions or rules or regulations of the
Securities and Exchange Commission under Section 31(a) of the Act and maintained
and preserved by the Management Company in connection with the performance of
its obligations hereunder, are the property of the Trust and shall be
surrendered by the Management Company promptly on request by the Trust;
provided, that the Management Company may at its own expense, make and retain
copies of any such records.
6. Confidentiality. The Management Company agrees, on its own behalf and on
behalf of its employees, agents and contractors, to keep confidential any and
all records maintained and other information obtained hereunder which relates to
the Trust or to any of the Trust's former, current or prospective shareholders,
except that the Management Company may deliver records or divulge information
when requested to do so by duly constituted authorities after prior notification
to, and approval in writing by, the Trust (which approval will not be
unreasonably withheld and may not be withheld by the Trust where the Management
Company advises the Trust that it may be exposed to civil or criminal contempt
proceedings or other penalties for failure to comply with such request) or
whenever requested in writing to do so by the Trust.
7. Services to Other Clients. Nothing herein contained shall limit the
freedom of the Management Company or any affiliated person of the Management
Company to render services of the types contemplated hereby to other persons,
firms or corporations, including but not limited to other investment companies,
or to engage in other business activities.
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<PAGE>
8. Management Company Actions in Reliance on Trust Instructions, Legal
Opinions, Etc; Trust Compliance with Law.
(a) The Management Company may at any time apply to an officer of the
Trust for instructions, and may consult with legal counsel for the Trust or with
the Management Company's own legal counsel, in respect of any matter arising in
connection with this Agreement; and the Management Company shall not be liable
for any actions taken or omitted to be taken in good faith and with due care in
accordance with such instructions or with the advice or opinion of such legal
counsel. The Management Company shall be protected in acting upon any such
instructions, advice or opinion and upon any other paper or document delivered
by the Trust or such legal counsel which the Management Company believes to be
genuine and to have been signed by the proper person or persons, and the
Management Company shall not be held to have notice of any change of status or
authority of any officer or representative of the Trust, until receipt of
written notice thereof from the Trust.
(b) Except as otherwise provided in this Agreement or in any separate
agreement between the parties and except for the accuracy of information
furnished to the Trust by the Management Company, the Trust assumes full
responsibility for the preparation, contents, filing and distribution of its
Prospectus and Statement of Additional Information, and full responsibility for
other documents or actions required for compliance with all applicable
requirements of the Act, the Securities Exchange Act of 1934, the Securities Act
of 1933, and any other applicable laws, rules and regulations of governmental
authorities having jurisdiction over the Trust.
9. Liability of Management Company and Distributor.
(a) The Management Company shall not be liable to the Distributor or
the Trust for any action taken or omitted to be taken by the Management Company
or its employees, agents or contractors in carrying out the provisions of this
Agreement if such action was taken or omitted in good faith and without
negligence or misconduct on the part of the Management Company, or its
employees, agents or contractors.
(b) The Distributor shall not have any responsibility or liability to
the Management Company or the Trust hereunder except for the payment of the
Shareholder Servicing Fee as provided herein; provided that such liability shall
be limited to the amount of the Shareholder Servicing Fee actually received by
the Distributor under each respective B Fund's Plan.
10. Indemnification by Trust. The Trust shall indemnify the Management
Company and hold it harmless from and against any and all losses, damages and
expenses, including reasonable attorneys' fees and expenses, incurred by the
Management Company which result from: (i) any claim, action, suit, or proceeding
in connection with the Management Company's entry into or performance of this
4
<PAGE>
Agreement; or (ii) any action taken or omission to act committed by the
Management Company in the performance of its obligations hereunder; or (iii) any
action of the Management Company taken upon instructions believed in good faith
by it to have been executed by a duly authorized officer or representative of
the Trust; provided, that the Management Company shall not be entitled to such
indemnification in respect of actions or omissions constituting negligence or
misconduct on the part of the Management Company, or its employees, agents or
contractors. Before confessing any claim against it which may be subject to
indemnification by the Trust hereunder, the Management Company shall give the
Trust reasonable opportunity to defend against such claim in its own name or in
the name of the Management Company.
11. Indemnification by Management Company. The Management Company shall
indemnify the Trust and hold it harmless from and against any and all losses,
damages and expenses, including reasonable attorneys' fees and expenses,
incurred by the Trust which result from: (i) the Management Company's failure to
comply with the terms of this Agreement; or (ii) the Management Company's lack
of good faith in performing its obligations hereunder; or (iii) the negligence
or misconduct of the Management Company, or its employees, agents or contractors
in connection herewith. The Trust shall not be entitled to such indemnification
in respect of actions or omissions constituting negligence or misconduct on the
part of the Trust or its employees, agents or contractors other than the
Management Company, unless such negligence or misconduct results from or is
accompanied by negligence or misconduct on the part of the Management Company,
any affiliated person of the Management Company, or any affiliated person of an
affiliated person of the Management Company. Before confessing any claim against
it which may be subject to indemnification hereunder, the Trust shall give the
Management Company reasonable opportunity to defend against such claim in its
own name or in the name of the Trust.
12. Effect of Agreement. Nothing herein contained shall be deemed to
require the Trust to take any action contrary to its Declaration of Trust or its
By-Laws or any applicable law, regulation or order to which it is subject or by
which it is bound, or to relieve or deprive the Trustees of the Trust of their
responsibility for and control of the conduct of the business and affairs of the
Trust.
13. Term of Agreement. This Agreement shall become effective as of the date
first above written and shall remain in force for two years from the date hereof
and thereafter, but only so long as such continuance is specifically approved at
least annually by (a) the Trustees of the Trust, or by the vote of a majority of
the outstanding voting securities of each relevant B Fund, and (b) concurrently
with such approval by the Trustees or prior to such approval by the holders of
the outstanding voting securities of each relevant B Fund, as the case may be,
by the vote of a majority of those Trustees who are not interested persons, as
defined in the Act, of the Trust and who have no direct or indirect financial
interest in the operation of any relevant B Fund's Plan, any agreement related
to such Plan or this Agreement ("Qualified Trustees"), cast in person at a
meeting called for the purpose of voting upon such approval. The Management
Company shall furnish to the Trust, promptly upon its request, such information
5
<PAGE>
(including the Management Company's costs of delivering the services provided to
the Trust hereunder) as may reasonably be necessary to enable the Trust's
Trustees to evaluate the terms of this Agreement or any extension, renewal or
amendment hereof. The Management Company shall permit the Trust and its
accountants, counsel or other representatives to review its books and records
relating to the services provided hereunder at reasonable intervals during
normal business hours upon reasonable notice requesting such review.
14. Amendment and Assignment of Agreement. This Agreement may be amended by
the parties only if such amendment is specifically approved by (a) the Trustees
of the Trust, or by the vote of a majority of the outstanding voting securities
of each relevant B Fund, and (b) by the vote of a majority of the Qualified
Trustees cast in person at a meeting called for the purpose of voting on such
amendment.
15. Termination of Agreement. This Agreement may be terminated at any time
with respect to any and/or all of the B Funds, without the payment of any
penalty, by a majority of the Qualified Trustees or by vote of a majority of the
outstanding voting securities of each relevant B Fund, or by the Distributor or
the Management Company, on not more than sixty (60) days' nor less than thirty
(30) days' prior written notice to the other party; provided that, in the case
of termination by a B Fund, such action shall have been authorized by resolution
of a majority of the Qualified Trustees or by vote of a majority of the
outstanding voting securities of the relevant B Fund. This Agreement shall
automatically terminate in the event of its assignment.
16. Interpretation and Definition of Terms. Any question of interpretation
of any term or provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the Act shall be resolved by reference to
such term or provision of the Act and to interpretation thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the Securities and Exchange Commission
(the "Commission") validly issued pursuant to the Act. Specifically, the terms
"interested persons," "assignment" and "affiliated person," as used in this
Agreement, shall have the meanings assigned to them by Section 2(a) of the Act.
In addition, when the effect of a requirement of the Act reflected in any
provision of this Agreement is modified, interpreted or relaxed by a rule,
regulation or order of the Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order. The Trust, the Distributor and the Management Company
may from time to time agree on such provisions interpreting or clarifying the
provisions of this Agreement as, in their joint opinion, are consistent with the
general tenor of this Agreement and with the specific provisions of this
Paragraph 16. Any such interpretations or clarifications shall be in writing
signed by the parties and annexed hereto, but no such interpretation or
clarification shall be effective if in contravention of any applicable federal
or state law or regulations, and no such interpretation or clarification shall
be deemed to be an amendment of this Agreement.
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<PAGE>
17. Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
18. Execution in Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
19. Choice of Law. Except insofar as the Act or other federal laws and
regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
California.
20. Limitation of Liability. The parties expressly agree that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the Trust
personally, but shall bind only the Trust estate, as provided in the Trust's
Declaration of Trust. Any authorization by the Trustees or shareholders of this
Trust, acting as such, to execute or deliver this Agreement or both, shall not
be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the Trust Estate as
provided in the Trust's Declaration of Trust.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day and
year first above written.
FIRST FUND DISTRIBUTORS INC.
By: /s/Steven J. Paggioli
-----------------------------
Name: Steven J. Paggioli
Title: Vice President
PROVIDENT INVESTMENT COUNSEL
By: /s/Douglass B. Allen
-----------------------------
Name: Douglass B. Allen
Title: Vice President
PIC INVESTMENT TRUST, on behalf of each B Fund, hereby joins and executes
this Agreement as a third party beneficiary with respect to paragraphs 1, 5, 6
and 11 through 20 hereof, and as an obligor solely with respect to paragraph 10
hereof, and hereby acknowledges and accepts the provisions of paragraphs 8 and 9
hereof.
PIC INVESTMENT TRUST
By:/s/Douglass B. Allen
-----------------------------
Name: Douglass B. Allen
Title: President
8
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SCHEDULE A
B FUNDS
Provident Investment Counsel Pinnacle Balanced Fund B
Provident Investment Counsel Pinnacle Growth Fund B
Provident Investment Counsel Pinnacle Mid Cap Fund B
Provident Investment Counsel Pinnacle Small Company Growth Fund B
9
PIC INVESTMENT TRUST
CONTRACTUAL WAIVER/REIMBURSEMENT AGREEMENT
This Contractual Waiver/Reimbursement Agreement ("Amendment") is entered
into and effective as of March 1, 1999 by and between PIC Investment Trust, (the
"Trust"), a Delaware business trust, and Provident Investment Counsel (the
"Administrator"), a California corporation.
WHEREAS, the Trust and Administrator entered into an Administration
Agreement (the "Agreement") dated as of June 11, 1992 and they desire to also
enter into this Agreement as provided herein;
NOW THEREFORE, in consideration of the mutual covenants and promises set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
The Administrator hereby agrees to waive its fee and to reimburse expenses
to the extent necessary such that the total operating expenses of each Fund of
the Trust do not exceed a percentage of the Funds average daily net assets as
detailed on Exhibit A.
Term. This Agreement shall become effective on the date specified herein
and shall remain in effect for a period of ten (10) years, unless sooner
terminated as provided in this Agreement. This Agreement shall continue in
effect thereafter for additional periods not exceeding one (1) year so long as
such continuation is approved for each Fund at least annually by the Board of
Trustees of the Trust (and separately by the disinterested Trustees of the
Trust).
Termination. This Agreement may be terminated by the Trust on behalf of any
one or more of the Funds at any time without payment of any penalty or by the
Board of Trustees of the Trust, upon sixty (60) days written notice to the
Administrator. The Administrator may decline to renew this Agreement by written
notice to the Trust at least thirty (30) days before its annual expiration date.
Modification and Governing Law. This Agreement may not be modified except
by a writing signed by authorized representatives of the parties to this
Amendment. This Amendment shall be governed by and construed and interpreted in
accordance with the laws of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date first above written.
PIC INVESTMENT TRUST
By:/s/Douglass B. Allen
- -----------------------------
Title: President
PROVIDENT INVESTMENT COUNSEL
By: /s/Douglass B. Allen
- -----------------------------
Title: Vice President
<PAGE>
PIC INVESTMENT TRUST
CONTRACTUAL WAIVER/REIMBURSEMENT AGREEMENT
Effective March 1, 1999
EXHIBIT A
ANNUAL OPERATING
FUNDS EXPENSE LIMIT
- --------------------------------------------------------------------------------
Provident Investment Counsel Pinnacle Balanced Fund A 1.05%
Provident Investment Counsel Pinnacle Growth Fund A 1.35%
Provident Investment Counsel Pinnacle Mid Cap Fund A 1.39%
Provident Investment Counsel Pinnacle Small Company Growth Fund A 1.55%
Provident Investment Counsel Pinnacle Balanced Fund B 1.90%
Provident Investment Counsel Pinnacle Growth Fund B 2.10%
Provident Investment Counsel Pinnacle Mid Cap Fund B 2.14%
Provident Investment Counsel Pinnacle Small Company Growth Fund B 2.30%
Provident Investment Counsel Growth Fund I 1.25%
Provident Investment Counsel Small Company Growth Fund I 1.45%
Provident Investment Counsel Small Cap Growth Fund I 1.00%
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints Robert H. Wadsworth his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
the Registration Statement on Form N-1A of PIC Investment Trust under the
Securities Act of 1933 and the Investment Company Act of 1940, an to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all said attorney-in-fact and agent may lawfully do or cause to be
done by virtue hereof.
DATED: December 29, 1998
/s/Douglass B. Allen
-----------------------------
Douglass B. Allen
PIC INVESTMENT TRUST
DISTRIBUTION PLAN PURSUANT TO RULE 12b-1
This Plan (the "Plan") dated the 31st day of March, 1999, is the written
plan contemplated by Rule 12b-1 (the "Rule") under the Investment Company Act of
1940, as amended (the "Act") with respect to each fund listed on Schedule A
hereto, as such Schedule A may be amended from time to time (each, a "B Fund,"
and collectively, the "B Funds"), each a series of PIC Investment Trust (the
"Trust").
W H E R E A S:
The Trust is registered as an open-end investment company under the Act and
currently consists of a number of series (which include, but are not limited to,
the B Funds), and the Board of Trustees may establish additional series in the
future.
Currently, each B Fund offers solely shares that are subject to a
contingent deferred sales charge ("CDSC shares").
The Trust intends to distribute the CDSC shares of each B Fund and desires
to adopt a Plan of Distribution pursuant to Rule 12b-1 under the Act with
respect to each B Fund, and the Trustees have determined, in the exercise of
their reasonable business judgment and in light of their fiduciary duty, that
there is a reasonable likelihood that the Plan will benefit each B Fund and its
shareholders.
The Trust employs First Fund Distributors, Inc. (the "Distributor") as a
representative of each B Fund and as the principal underwriter of its shares,
including its CDSC shares, pursuant to an Amended and Restated Distribution
Agreement dated March 31, 1999, as it may be amended from time to time (the
"Distribution Agreement"). The Trust or a B Fund may, in the future, pursuant to
this Plan and a distribution agreement, appoint a successor distributor to act
as distributor of the Trust's or such B Fund's CDSC shares, as applicable. The
terms "Distributor" and "Distribution Agreement" shall, where applicable, be
deemed to include such successor distributor and distribution agreement,
respectively.
NOW, THEREFORE, in consideration of the foregoing, the Trust hereby adopts
this Plan on behalf of each B Fund (the Trust shall be deemed to be adopting a
separate Plan with respect to each B Fund), in accordance with Rule 12b-1 under
the Act (the "Rule") on the following terms and conditions :
1. DEFINITIONS. As used in this Plan, the following terms shall have the
following meanings:
<PAGE>
(a) "Qualified Recipient" shall mean any broker-dealer or other
"person" (as that term is defined in the Act) which (i) has entered into a
written agreement (a "related agreement") that complies with the Rule with the
Distributor and (ii) has rendered distribution assistance (whether direct,
administrative or both) and/or account maintenance assistance in respect of a B
Fund's CDSC shares.
(b) "Qualified Holdings" shall mean all CDSC shares of any B Fund
beneficially owned by (i) a Qualified Recipient, (ii) the customers (brokerage
or other) of a Qualified Recipient, (iii) the clients (investment advisory or
other) of a Qualified Recipient, (iv) the accounts as to which a Qualified
Recipient has a fiduciary or custodial relationship, and (v) the members of a
Qualified Recipient, if such Qualified Recipient is an association or union;
provided that the Qualified Recipient shall have been instrumental in the
purchase of such B Fund's CDSC shares by, or shall have provided administrative
assistance to, such customers, clients, accounts or members in relation thereto.
The Distributor may make final and binding decisions as to all matters relating
to Qualified Holdings and Qualified Recipients, including but not limited to (i)
the identity of Qualified Recipients; (ii) whether or not any CDSC shares of a B
Fund are to be considered as Qualified Holdings of any particular Qualified
Recipient; and (iii) what CDSC shares of a B Fund, if any, are to be attributed
to a particular Qualified Recipient, to a different Qualified Recipient or to no
Qualified Recipient.
(c) "Qualified Trustees" shall mean the Trustees of the Trust who are
not interested persons, as defined in the Act, of the Trust and who have no
direct or indirect financial interest in the operation of this Plan or any
agreement related to this Plan. While this Plan is in effect, the selection and
nomination of Qualified Trustees shall be committed to the discretion of the
Trustees who are not interested persons of the Trust. Nothing herein shall
prevent the involvement of others in such selection and nomination if the final
decision on any selection and nomination is approved by a majority of such
disinterested Trustees.
(d) "Permitted Payments" shall mean payments by the Distributor to
Qualified Recipients as permitted by this Plan.
2. COMPENSATION OF DISTRIBUTOR.
(a) SHAREHOLDER SERVICING FEE. The Trust shall pay to the Distributor,
as compensation for providing administrative, shareholder and
shareholder-related assistance with respect to the CDSC shares, to the B Fund or
its shareholders, a shareholder servicing fee (the "Shareholder Servicing Fee"),
which shall accrue daily at the rate of 0.25% per annum of the average daily net
assets attributable to CDSC shares of any applicable B Fund, and be payable
monthly.
(b) DISTRIBUTION FEE. The Trust shall pay to the Distributor, as
compensation for acting as principal distributor in respect of the CDSC shares
of each B Fund, its "Allocable Portion" (as hereinafter defined) of a fee (the
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<PAGE>
"Distribution Fee"), which shall accrue daily at the rate of 0.75% per annum of
the average daily net assets attributable to CDSC shares of any applicable B
Fund, and be payable monthly.
Any Distribution Agreement between the Trust on behalf of a B Fund, as
applicable, and a Distributor relating to the CDSC shares of a B Fund shall
provide that: (I) the Distributor will be deemed to have performed all services
required to be performed in order to be entitled to receive its Allocable
Portion (as defined below) of the Distribution Fee payable in respect of the
CDSC shares of that B Fund upon the settlement date of each sale of a
"Commission Share" (as defined in the Allocation Schedule attached to the
Distribution Agreement (the "Allocation Schedule")) taken into account in
determining such Distributor's Allocable Portion of such Distribution Fee; (II)
notwithstanding anything to the contrary in this Plan or the Distribution
Agreement, the B Fund's obligation to pay such Distributor its Allocable Portion
of the Distribution Fee payable shall not be terminated or modified (including
without limitation, by change in the rules applicable to the conversion of the
CDSC shares into shares of another class) for any reason (including a
termination of the Distribution Agreement between such Distributor and the Trust
on behalf of that B Fund) except: (a) to the extent required by a change in the
Act, the rules and regulations under the Act or the Conduct Rules of the
National Association of Securities Dealers, Inc., (the "NASD") in each case
enacted or promulgated after March 1, 1999, (b) on a basis which does not alter
the Distributor's Allocable Portion of the Distribution Fee computed with
reference to Commission Shares of such B Fund the Date of Original Issuance (as
defined in the Allocation Schedule) of which occurs on or prior to the adoption
of such termination or modification and with respect to Free Shares (as defined
in the Allocation Schedule) which would be attributed to such Distributor under
the Allocation Schedule with reference to such Commission Shares, or (c) in
connection with a "Complete Termination" (as hereinafter defined) of the Plan
with respect to such B Fund; (III) the Trust will not take any action, on behalf
of the applicable B Fund, to waive or change any CDSC in respect of the CDSC
shares of that B Fund the Date of Original Issuance (as defined in the
Allocation Schedule) of which occurs on or prior to the taking of such action
except as provided in such B Fund's prospectus or statement of additional
information on the date such Commission Share was issued, without the consent of
such Distributor; (IV) notwithstanding anything to the contrary in this Plan or
the Distribution Agreement, none of the termination of such Distributor's role
as principal distributor of the CDSC shares of a B Fund, the termination of such
Distribution Agreement or the termination of this Plan will terminate such
Distributor's right to its Allocable Portion of the CDSCs in respect of CDSC
shares of such B Fund; and (V) notwithstanding anything of the contrary set
forth in this Plan or in the Distribution Agreement, the B Fund's obligation to
pay such Distributor's Allocable Portion of the Distribution Fees and CDSCs
payable in respect of the CDSC shares of that B Fund shall be absolute and
unconditional and shall not be subject to dispute, offset, counterclaim or any
defense whatsoever, at law or equity, including, without limitation, any of the
foregoing based on the insolvency or bankruptcy of such Distributor. For
purposes of this Plan, the term Allocable Portion of Distribution Fees or CDSCs
payable in respect of the CDSC shares of a B Fund as applied to any Distributor
shall mean the portion of such Distribution Fees or CDSCs payable in respect of
such CDSC shares of such B Fund allocated to such Distributor in accordance with
the Allocation Schedule as it relates to the CDSC shares of such B Fund. For
3
<PAGE>
purposes of this Plan and each Distribution Agreement the term "Complete
Termination" of the Plan means a termination of this Plan and every other
distribution plan with respect to a particular B Fund involving the complete
cessation of the payment of Distribution Fees in respect of all of the current
CDSC shares of that B Fund.
3. PAYMENTS AUTHORIZED. The Distributor is authorized, pursuant to this
Plan, to make Permitted Payments from the Shareholder Servicing Fee and/or the
Distribution Fee to any Qualified Recipient under a related agreement on either
or both of the following bases:
(a) at a rate specified in the related agreement with the Qualified
Recipient in question, based on the average value of the Qualified Holdings of
such Qualified Recipient or on such other basis as may be specified therein;
and/or
(b) as reimbursement for direct expenses incurred by the Qualified
Recipient in the course of distributing CDSC shares of a B Fund or providing
administrative, shareholder and shareholder-related assistance to the B Fund or
its shareholders, including, but not limited to, costs of providing personal
service, maintenance of shareholder accounts, advertising, printing and mailing
promotional material, telephone calls and lines, computer terminals, and
personnel. Any such advertising and sales material must, in each instance, be
approved in advance by the Trust and the Distributor and may include reference
to other open-end investment companies or other investments and any salesmen so
paid are not required to devote their time solely to the sale of the CDSC shares
of the B Funds.
4. REPORTS. While this Plan is in effect, the Distributor shall report in
writing at least quarterly to the Trust's Board of Trustees, and the Board shall
review, the amounts expended under the Plan and the purposes for which such
expenditures were made.
5. EFFECTIVENESS, CONTINUATION, TERMINATION AND AMENDMENT. This Plan has
been approved by a vote of the Board of Trustees of the Trust and of the
Qualified Trustees, cast in person at a meeting called for the purpose of voting
on this Plan. This Plan shall become effective with respect to each B Fund on
the date set forth above, and, unless terminated as hereinafter provided, shall
continue in effect until __________, 2000, and from year to year thereafter only
so long as such continuance is specifically approved at least annually by the
Trust's Board of Trustees and its Qualified Trustees cast in person at a meeting
called for the purpose of voting on such continuance. This Plan may be
terminated with respect to any and/or all of the B Funds at any time by a vote
of a majority of the Qualified Trustees or by the vote of the holders of a
"majority" (as defined in the Act) of the outstanding CDSC shares of the
relevant B Fund. This Plan may not be amended to increase materially the amount
of payments to be made without shareholder approval of the appropriate B Fund,
as set forth in the preceding sentence, and all amendments must be approved in
the manner set forth in the first sentence of this section.
4
<PAGE>
SCHEDULE A
B FUNDS
Provident Investment Counsel Pinnacle Balanced Fund B
Provident Investment Counsel Pinnacle Growth Fund B
Provident Investment Counsel Pinnacle Mid Cap Fund B
Provident Investment Counsel Pinnacle Small Company Growth Fund B
5
