Exhibit 99.8(h)2
AMENDED AND RESTATED
EXPENSE LIMITATION AGREEMENT
GROWTH FUND
EXPENSE LIMITATION AGREEMENT, amended and restated as of the 31st day of
December, 2003, by and between Pacific Global Fund, Inc., a Maryland corporation
doing business as Pacific Advisors Fund Inc. (the "Corporation"), on behalf of
the Growth Fund (the "Fund"), Pacific Global Investment Management Company, a
California corporation (the "Investment Manager," and Pacific Global Investors
Services, Inc., a California corporation (the "Transfer Agent").
W I T N E S S E T H:
WHEREAS, the Corporation, on behalf of the Fund, and the Investment Manager
have entered into an Investment Management Agreement, dated April 29, 1999 (the
"Management Agreement"), pursuant to which the Investment Manager will render
investment management and advisory services to the Fund for compensation based
on the value of the average daily net assets of the Fund; and
WHEREAS, the Corporation, on behalf of the Fund, and the Transfer Agent
have entered into a Transfer Agency, Dividend Disbursing Agency, and
Administrative Services Agreement, dated as of December 22, 1992 (the "Transfer
Agency Agreement"), pursuant to which the Transfer Agent will provide among
other things transfer agency services to the Fund and receive transfer agency
fees ("Transfer Agency Fees") in accordance with the Transfer Agency Fee
Schedule in Schedule A to the Transfer Agency Agreement; and
WHEREAS, the Corporation, the Investment Manager, and the Transfer Agent
have determined that it is appropriate and in the best interests of the Fund and
its shareholders to maintain Fund expenses at a level below the level to which
the Fund would normally be subject during its start-up period; and
WHEREAS, the Corporation, the Investment Manager, and the Transfer Agent
have determined that is appropriate and in the best interests of the Fund and
its shareholders to amend and restate the Expense Limitation Agreement with
respect to the Fund, dated as of April 29, 1999, as amended and restated as of
March 29, 2002.
NOW THEREFORE, the parties hereto agree as follows:
1 EXPENSE LIMITATION
1.1 APPLICABLE EXPENSE LIMIT. For each Class of the Fund, to the extent
that the Class Operating Expenses in any fiscal year exceed the applicable Class
Operating Expense Limit, the Investment Manager and the Transfer Agent shall be
liable for the portion of such
1
excess amount as does not exceed the amount of the investment advisory fees and
the Transfer Agency Fees for such year (the "Class Excess Amount"). As used
herein, "Class Operating Expenses" of a Class shall mean that the aggregate
expenses of every character incurred by the Fund in any fiscal year, including
but not limited to the Fund's organizational expenses and investment advisory
fees of the Investment Manager (but excluding interest, taxes, brokerage
commissions, and other expenditures which are capitalized in accordance with
generally accepted accounting principles, and other extraordinary expenses not
incurred in the ordinary course of the Fund's business), attributable to such
Class in accordance with the Corporation's Multi-Class Plan pursuant to Rule
18f-3 under the 1940 Act, as such Plan is in effect from time to time (the
"Multi-Class Plan"). Any fee waiver required hereunder shall be the obligation
first of the Investment Manager to the extent of its investment advisory fees
and then, if necessary, of the Transfer Agent to the extent of the Transfer
Agency Fees.
1.2 CLASS OPERATING EXPENSE LIMIT. The Class Operating Expense Limit for
the Fund's Class A Shares shall equal 2.65% of the average daily net assets of
the Fund attributable to Class A Shares. The Class Operating Expense Limit for
the Fund's Class C Shares shall equal 3.40% of the average daily net assets of
the Fund attributable to Class C Shares.
1.3 METHOD OF COMPUTATION.
1.3.1 DAILY COMPUTATION. The Investment Manager shall determine on
each business day whether the aggregate fiscal year-to-date Class Operating
Expenses for any Class exceed the applicable Class Operating Expense Limit,
as such Class Operating Expense Limit has been pro-rated to the date of
such determination (the "Pro-Rated Class Operating Expense Limit"). If, on
any business day, the aggregate fiscal year-to-date Class Operating
Expenses do not equal the Pro-Rated Class Operating Expense Limit, the
amount of such difference shall be netted against the total year-to-date
Class Excess Amount, determined as of the end of the previous business day,
and the difference shall be accrued for that day as a Daily Difference
(which may be positive or negative as appropriate), provided that after
such accrual the total year-to-date Class Excess Amount may not exceed the
year-to-date investment advisory fees accrued by the Investment Manager
with respect to that Class or the year-to-date fees accrued by the Transfer
Agent with respect to that Class. A positive Daily Difference will accrue
if the aggregate fiscal year-to-date Class Operating Expenses exceed the
Pro-Rated Class Operating Expense Limit, and a negative Daily Difference
will accrue if the aggregate fiscal year-to-date Class Operating Expenses
are less than the Pro-Rated Class Operating Expense Limit.
1.3.2 MONTHLY CALCULATION OF FEE WAIVER. At the end of each month, the
accruals made in such month pursuant to Section 1.3.1 above shall be netted
for each Class. If the total positive Daily Differences for such month
exceed the negative Daily Differences, the Investment Manager and, if
necessary, the Transfer Agent shall waive their respective fees for the
month with respect to such Class in an aggregate amount equal to the net
Daily Differences; if the total negative Daily Differences for such month
exceed the total positive Daily Differences, the Investment Manager shall
not be required
2
to waive its investment advisory fee and the Transfer Agent shall not be
required to waive its fee for the month; and further, the Investment
Manager and the Transfer Agent shall not be obligated to waive fees at the
end of any month, to the extent that such waiver would cause the Investment
Manager's and the Transfer Agent's aggregate fiscal year-to-date fee
waivers to exceed the then-current difference between the aggregate fiscal
year-to-date Class Operating Expenses and the applicable year-to-date Class
Operating Expense Limit. Any such waiver shall be allocated among the
classes of the Fund in accordance with the terms of the Fund's Multiple
Class Plan Pursuant to Rule 18f-3 under the 1940 Act.
1.4 YEAR-END ADJUSTMENT. Each year, if necessary, within 30 days after the
completion of the audit of the Corporation's financial statements for such
fiscal year, an adjustment payment shall be made by the appropriate party in
order that the amount of the investment management fees or Transfer Agency Fees
waived or reduced with respect to each Class for such fiscal year shall equal
the applicable Class Excess Amount.
2 TERM AND TERMINATION OF AGREEMENT.
This Agreement shall continue in effect for a period of one year from the
date of its execution and from year to year thereafter provided such continuance
is specifically approved by a majority of the Directors of the Corporation who
(i) are not "interested persons" of the Corporation or any other party to this
Agreement, as defined in the Act, and (ii) have no direct or indirect financial
interest in the operation of this Agreement ("Non-Interested Directors").
Nevertheless, this Agreement may be terminated by either party hereto, without
payment of any penalty, upon 90 days' prior written notice to the other party at
its principal place of business; provided that, in the case of termination by
the Fund, such action shall be authorized by resolution of a majority of the
Non-Interested Directors of the Corporation or a vote of a majority of the
outstanding voting securities of the Fund.
3 MISCELLANEOUS.
3.1 NOTICES. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid, (a) if to the Investment Manager,
to Pacific Global Investment Management Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (b) if to the Transfer Agent, to Pacific Global
Investors Services, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, and (c) if to the Corporation, at the foregoing office of the Investment
Manager.
3.2 CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no other way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
3.3 INTERPRETATION. Nothing herein contained shall be deemed to require
the Fund or the Corporation to take any action contrary to the its Articles of
Incorporation or By-Laws, or
3
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 Directors of its
responsibility for and control of the conduct of the affairs of the Corporation
or the Fund.
3.4 DEFINITIONS. Any question of interpretation of any term or provision
of this Agreement, including but not limited to the investment advisory fee, the
computations of net asset values, and the allocation of expenses, having a
counterpart in or otherwise derived from the terms and provisions of the
Management Agreement, shall have the same meaning as and be resolved by
reference to such Agreement.
3.5 GOVERNING LAW. Except insofar as the 1940 Act or other federal laws or
regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of Maryland.
3.6 EFFECTIVE DATES. The provisions of Section 1 of this Agreement shall
become effective on February 15, 2004, and prior to that date, any fee waiver or
expense reimbursements shall be determined and paid in accordance with Section 1
of the Expense Limitation Agreement with respect to the Fund, dated as of April
29, 1999, as amended and restated March 29, 2002. The remaining provisions of
this Agreement, including Section 3.1, shall be effective beginning on December
31, 2003.
4
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers thereunto duly authorized and their respective
corporate seals to be hereunto affixed, as of the day and year first above
written.
ATTEST: PACIFIC GLOBAL FUND, INC.
d/b/a PACIFIC ADVISORS FUND INC.
ON BEHALF OF THE GROWTH FUND
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ATTEST: PACIFIC GLOBAL INVESTMENT
MANAGEMENT COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ATTEST: PACIFIC GLOBAL INVESTORS
SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
5