DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made as of this 26th day of February, 1998
(the "Agreement") by and between Rembrandt Funds, a Massachusetts business trust
(the "Company") having its principal place of business at 000 Xxxxx Xx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and First Date Distributors, Inc., a
Massachusetts corporation (the "Distributor") having its principal place of
business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Company is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and its units of beneficial interest (such units of all series are hereinafter
called the "Shares") are registered with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933 (the "1933 Act"), and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934 (the "1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc. ("NASD"),
and
WHEREAS, the Company desires to retain the Distributor as distributor for
the investment portfolios of the Company to provide for the sale and
distribution of the Shares of the investment portfolios identified on Schedule A
(the "Funds") and for such additional classes or series as the Company may
issue, and the Distributor is prepared to provide such services commencing on
the date first written above, and
WHEREAS, the Company and the Distributor wish to enter into an agreement
with each other with respect to the continuous offering of the Company's Shares.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein the Distributor and the Company hereby agree as follows:
1. SERVICE AS DISTRIBUTOR
----------------------
1.1 The Company hereby appoints and the Distributor agrees to act as the
Company's agent to sell and arrange for the sale of the Shares covered by
the Company's registration statement under the 0000 Xxx.
1.2 The Distributor agrees to use its best efforts in connection with the
distribution of Shares, including such advertising and promotion as it
believes reasonable in connection with such distribution.
The Distributor will hold itself available to receive orders, that the
Distributor reasonably believes to be in good order, for the purchase of
the Shares and will accept such orders and will transmit such orders as are
so accepted and funds received by it in payment for such Shares to the
Company's transfer agent or custodian, as appropriate, as promptly as
practicable. Purchase orders shall be deemed effective at the time and in
the manner set forth in the Prospectus. The offering price of the Shares
will be the net asset value per
share of the Shares plus any applicable sales charges, determined as set
forth in the Prospectus. The Distributor shall not make any short sales of
the Shares.
The Distributor shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations made
or adopted by the SEC or by any securities association registered under the
1934 Act and which regulates the Distributor. The Distributor shall
maintain the required licenses and registration for itself as a broker-
dealer, and for its registered representatives or other associated persons,
under the 1934 Act and applicable state securities laws.
The Distributor is not authorized by the Company to give on behalf of the
Company any information or make any representations in connection with the
sale of Shares other than the information and representations contained in
the Registration Statement filed with the SEC under the 1933 Act and the
1940 Act, as such Registration Statement may be amended from time to time,
or contained in shareholder reports or other material that may be prepared
by or on behalf of the Company for the Distributor's use.
1.3 The Company understands that the Distributor is now, and may in the future
be, the distributor of the shares of several investment companies or series
(collectively, the "Investment Entities"), including Investment Entities
having investment objectives similar to those of the Company. The Company
further understands that investors and potential investors in the Company
may invest in shares of such other Investment Entities. The Company agrees
that the Distributor's duties to such Investment Entities shall not be
deemed in conflict with its duties to the Company under this Section 1.3.
1.4 The Distributor shall not utilize any materials in connection with the sale
or offering of Shares except the Company's current prospectus and statement
of additional information and such other materials as the Company shall
provide or approve.
1.5 All activities by the Distributor and its employees, as distributor of the
Shares, shall comply with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted by
the SEC or the National Association of Securities Dealers.
1.6 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Company.
1.7 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind, the
Company may decline to accept any orders for, or make any sales of, the
Shares until such time as the Company deems it advisable to accept such
orders and to make such sales, and the Company advises the Distributor
promptly of such determination.
1.8 The Company agrees to pay all costs and expenses in connection with the
registration of Shares under the Securities Act of 1933, as amended, and
all expenses in connection with maintaining facilities for the issue and
transfer of Shares and for supplying information, prices and other data to
be furnished by the Fund hereunder, and all expenses in
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connection with preparation and printing of the Fund's prospectuses and
statements of additional information for regulatory purposes and for
distribution to shareholders.
1.9 The Company agrees at its own expense to execute any and all documents
and to furnish any and all information and otherwise to take all actions
that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as the Distributor may designate. The
Company shall notify the Distributor in writing of the states in which
the Shares may be sold and shall notify the Distributor in writing of any
changes to the information contained in the previous notification.
1.10 The Company shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Company and
the Shares as the Distributor may reasonably request. The Company shall
also furnish the Distributor upon request with: (a) audited annual
statements and unaudited semi-annual statements of a Fund's books and
accounts prepared by the Company, (b) quarterly earnings statements
prepared by the Company, (c) a monthly itemized list of the securities in
the Funds, (d) monthly balance sheets as soon as practicable after the
end of each month, and (e) from time to time such additional information
regarding the financial condition of the Company as the Distributor may
reasonably request.
1.11 The Company represents to the Distributor that, all Registration
Statements and prospectuses filed by the Company with the SEC under the
1933 Act with respect to the Shares have been prepared in conformity with
the requirements of the 1933 Act and the rules and regulations of the SEC
thereunder. As used in this Agreement, the term "Registration Statement"
shall mean any registration statement and any prospectus and any
statement of additional information relating to the Company filed with
the SEC and any amendments or supplements thereto at any time filed with
the SEC. Except as to information included in the Registration Statement
in reliance upon information provided to the Company by the Distributor
or any affiliate of the Distributor expressly for use in the Registration
Statement, the Company represents and warrants to the Distributor
expressly for use in the Registration Statement, when such Registration
Statement becomes effective, will contain statements required to be
stated therein in conformity with the 1933 Act and the rules and
regulations of the SEC; that all statements of fact contained in any such
Registration Statement will be true and correct when such Registration
Statement becomes effective; and that no Registration Statement when such
Registration Statement becomes effective will include an unture statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of the Shares. The Distributor may, but shall not be obligated
to, propose from time to time such amendment or amendments to any
Registration Statement and such supplement or supplements to any
prospectus as, in the light of future developments, may, in the opinion
of the Company's counsel, be necessary or advisable. The Company shall
promptly notify the Distributor of any advice given to it by its counsel
regarding the necessity or advisability of amending or supplementing such
Registration Statement. The Company shall not file any amendment to any
Registration Statement or supplement to any prospectus without giving the
Distributor reasonable notice thereof in advance; provided, however, that
nothing contained in this Agreement shall in any way limit the Company's
right to file at any time such amendments to any Registration
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Statements and/or supplements to any prospectus, of whatever character,
as the Company may deem advisable, such right being in all respects
absolute and unconditional.
1.12 The Company agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments and
liabilities of any sort or kind which the Distributor, its officers,
directors, employees or any such controlling person may incur under the
1933 Act, under any other statute, at common law or otherwise, but only
to the extent that such liability or expense incurred by the Distributor,
its officers, directors, employees or any controlling person resulting
from such claims or demands arise out of the acquisition of Shares by any
person which is based upon: (i) any untrue statement, or alleged untrue
statement, of material fact contained in the Company's Registration
Statement, prospectus, statement of additional information, or sales
literature (including amendments and supplements thereto), or (ii) any
omission, or alleged omission, to state a material fact required to be
stated in the Company's Registration Statement, prospectus, statement of
additional information or sales literature (including amendments or
supplements thereto), necessary to make the statements therein not
misleading. Notwithstanding the foregoing, the Company shall not be
obligated to indemnify any entity or person pursuant to this paragraph
1.12 against any losses, claims, costs, charges, payments, damages,
liabilities or expenses (including attorneys' fees) of any sort or kind
(i) arising out of the acquisition so Shares by any person which is bases
upon any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information furnished
to the Company by the Distributor or its affiliated persons for use in
the Company's Registration Statement, prospectus, or statement of
additional information or sales literature (including amendments or
supplements thereto) or (ii) arising by reason of the Distributor's
willful misfeasance, bad faith or negligence in the performance of the
Distributor's willful misfeasance, bad faith or negligence in the
performance of the Distributor's duties hereunder or by reason of
reckless disregard of its obligations or duties hereunder, form reliance
on information furnished to the Company by the Distributor or its
affiliates, or from the Distributor's furnished to the Company by the
Distributor or its affiliates, or from the Distributor's refusal or
failure to comply with the terms or conditions of this Agreement.
1.13 The Distributor agrees to indemnify and hold harmless the Company, its
several officers and Trustees and each person, if any, who controls a
Fund within the meaning of Section 15 of the 1933 Act against any and all
claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind which the
Company, its officers, Trustees or any such controlling person may incur
the 1933 Act, under any other statute, at common law or otherwise, but
only to the extent that such liability or expense incurred by the
Company, its officers or Trustees, or any controlling person resulting
from such claims or demands arose (i) out of the acquisition of any
Shares by any person which may be based upon any untrue statement, or
alleged untrue statement, of a material fact contained in the Company's
Registration Statement, prospectus, statement of additional information
(including amendments and supplements thereto) or sales literature, or
any omission, or alleged omission, to state 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 or confirmed in writing to the Company by the
Distributor or its affiliated persons (as defined in the
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1940 Act), (ii) by reason of the Distributor's willful misfeasance, bad
faith or negligence in performance of the Distributor's duties or
obligations hereunder or by reason of reckless disregard of its duties or
obligations hereunder, (iii) from reliance on information furnished to
the Company by the Distributor or its affiliates, or (iv) from the
Distributor's refusal or failure to comply with the terms or conditions
of this Agreement.
1.14 In any case in which one party hereto (the "Indemnifying Party") may be
asked to indemnify or hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying
Party promptly after identifying any situation which it believes presents
or appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party, although the
failure to do so shall not prevent recovery by the Indemnified Party, and
shall keep the Indemnifying Party advised with respect to all
developments concerning such situation. The Indemnifying Party shall have
the option to defend the Indemnified Party against any Indemnification
Claim which may be the subject of this indemnification, and, in the event
that the Indemnifying Party so elects, such defense shall be conducted by
counsel chosen by the Indemnifying Party and satisfactory to the
Indemnified Party, whose approval shall not be unreasonably withheld, and
thereupon the Indemnifying Party shall take over the complete defense of
the Claim and the Indemnified Party shall sustain no further legal or
other expenses in respect of such Claim. In the event that the
Indemnifying Party elects to assume the defense of any Indemnification
Claim and retains legal counsel, the Indemnified Party shall bear the
fees and expenses of any additional legal counsel retained by it. The
Indemnified Party will not confess any Indemnification Claim or make any
compromise in any case in which the Indemnifying Party will be asked to
provide indemnification, except with the Indemnifying Party's prior
written consent. The obligations of the parties hereto under this Section
1.14 and Section 3.1 shall survive the termination of this Agreement.
In the event that the Indemnifying Party does not elect to assume the
defense of any such suit, or in case the Indemnified Party reasonably
does not approve of counsel chosen by the Indemnifying Party, or in case
there is a conflict of interest between the Indemnifying Party and the
Indemnified Party, the Indemnifying Party will reimburse the Indemnified
Party, its officers, trustees, directors and employees, or the
controlling person or persons named as defendant or defendants in such
suit, for the reasonable fees and expenses of any counsel retained by the
Indemnified Party or such Defendant. The Indemnifying Party's
indemnification agreement contained in this Section 1.14 and the
Indemnifying Party's representations and warranties in this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party, its
officers, directors, trustees, or employees, or any controlling persons,
and shall survive the delivery of any Shares. This agreement of indemnity
will inure exclusively to the Indemnified Party's benefit, to the benefit
of its several officers, directors, trustees or employees, and their
respective estates and to the benefit of the controlling persons and
their successors. The Indemnifying Party agrees promptly to notify the
Indemnified Party of the commencement of any litigation or proceedings
against the Indemnifying Party or any of its officers, trustees,
employees or directors in connection with the issue and sale of any
Shares.
1.15 No Shares shall be offered by either the Distributor or the Company under
any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder
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shall be accepted by the Company if and so long as effectiveness of the
Registration Statement then in effect or any necessary amendments thereto
shall be suspended under any of the provisions of the 1933 Act, or if and
so long as a current prospectus as required by Section 5(b)(2) of the 1933
Act is not on file with the SEC; provided, however, that nothing contained
in this Section 1.15 shall in any way restrict or have any application to
or bearing upon the Company's obligation to redeem. Shares tendered for
redemption by any shareholder in accordance with the provisions of the
Company's Registration Statement, Declaration of Company, or bylaws.
1.16 The Company agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor.
(a) in the event of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement, prospectus or statement of
additional information then in effect or the initiation by service of
process on the Company of any proceeding for that purpose;
(b) of the happening of any event that makes untrue any statement of a
material fact made in the Registration Statement, prospectus or statement
of additional information then in effect or that requires the making of a
change in such Registration Statement, prospectus or statement of
additional information in order to make the statements therein not
misleading; and
(c) of all actions of the SEC with respect to any amendments to any
Registration Statement, prospectus or statement of additional information
which may from time to time be filed with the SEC.
For purposes of this section, informal requests by or acts of the Staff of
the SEC shall not be deemed actions of the SEC.
2. TERM AND TERMINATION OF AGREEMENT
---------------------------------
2.1 This Agreement shall become effective on the date first written above and,
unless sooner terminated as provided herein, shall continue for an initial
two-year term and thereafter shall be renewed for successive one-year terms
in accordance with the requirements of the 1940 Act. This Agreement is
terminable without penalty, on at least sixty days' written notice, by
either party. This Agreement will also terminate automatically in the event
of its assignment (as defined in the 1940 Act and the rules thereunder).
2.2 In the event a termination notice is given by the Company, all reasonable
expenses associated with movement of records and materials and conversion
thereof will be borne by the Company.
3. LIMITATION OF LIABILITY
-----------------------
3.1 The Distributor shall at all times act in good faith and agrees to use its
best efforts within commercially reasonable limits to ensure the accuracy
of all services performed under this Agreement. The Distributor shall not
be liable to the Company for any error of judgment
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or mistake of law or for any loss suffered by the Company in connection
with the performance of its obligations and duties under this Agreement,
except a loss resulting from the Distributor's willful misfeasance, bad
faith or negligence in the performance of such obligations and duties, or
by reason of its reckless disregard thereof, reliance on information
furnished to the Company by the Distributor or its affiliates, or the
Distributor's refusal or failure to comply with the terms and conditions of
this Agreement. The Company shall not be liable to the Distributor for any
error of judgment or mistake of law or for any loss suffered by the
Distributor, except a loss resulting from the Company's willful
misfeasance, bad faith or negligence in the performance of its duties and
obligations hereunder, or by reason of its reckless disregard thereof.
3.2 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
3.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR LOST
PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES.
4. EXCLUSION OF WARRANTIES
-----------------------
THIS IS A SERVICE AGREEMENT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, MADE TO THE COMPANY, A FUND OR ANY OTHER PERSON,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES PROVIDED UNDER THIS
AGREEMENT. THE DISTRIBUTOR DISCLAIMS ANY WARRANTY OF TITLE OR NON-
INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
5. MODIFICATIONS AND WAIVERS
-------------------------
No change, termination, modification, or waiver of any term or condition of
the Agreement shall be valid unless in writing signed by each party. No
such writing shall be effective as against the Distributor unless said
writing is executed by a Senior Vice President, Executive Vice President or
President of the Distributor. A party's waiver of a breach of any term or
condition in the Agreement shall not be deemed a waiver of any subsequent
breach of the same or another term or condition.
6. NO PRESUMPTION AGAINST DRAFTER
------------------------------
The Distributor and the Company have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Company
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and the Distributor, and no presumptions arise favoring any party by virtue
of the authorship of any provision of this Agreement.
7. PUBLICITY
---------
Neither the Distributor nor the Company shall release or publish news
releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it, other than
factual statements concerning the existence of the relationship, without
prior review and written approval of the other party; provided, however,
that either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable efforts in
the circumstances to consult in advance with the other party.
8. SEVERABILITY
------------
The parties intend every provision of this Agreement to be severable. If a
court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not
affect the validity or the remainder of this Agreement. In such case, the
parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of
this paragraph, if a court determines that any remedy stated in this
Agreement has failed of its essential purpose, then all other provisions of
this Agreement, including the limitations on liability and exclusion of
damages, shall remain fully effective.
9. FORCE MAJEURE
-------------
No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature
or other acts of God; (ii) any outbreak or escalation of hostilities, war,
riots or civil disorders in any country, (iii) any act or omission of the
other party or any governmental authority, (iv) any labor disputes (whether
or not the employees' demands are reasonable or within the party's power to
satisfy); or (v) nonperformance by a third party or any similar cause
beyond the reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment. In any
such event, the non-performing party shall be excused from any further
performance and observance of the obligations so affected only for so long
as such circumstances prevail and such party continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
10. EQUIPMENT FAILURES
------------------
Notwithstanding any other provision in this Agreement, in the event of
equipment failures or the occurrence of events beyond the Distributor's
control which render its performance under this Agreement impossible, the
Distributor shall at no additional expense to the Company take reasonable
steps to minimize service interruptions. The Distributor represents that
the various procedures and systems which the Distributor has implemented
with regard to safekeeping from loss or damage attributable to fire, theft
or any other cause of the records, and other data of the Company and the
Distributor's records, data,
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are reasonably adequate and are covered by a reasonably adequate disaster
recovery plan, and it will make such changes therein from time to time as
are reasonably required for the secure performance of its obligations
hereunder.
11. YEAR 2000
---------
The Distributor's services hereunder shall rendered, and its computer
systems used in rendering such services shall operate and function, without
any Year 2000 Error. The term "Year 2000 Error" means;
(a) any failure of the Distributor's systems to properly record,
store, process, calculate or present calendar dates falling on and
after (and, if applicable, spans of time including) January 1, 2000 as
a result of the occurrence or use of data consisting of such dates;
(b) any failure of the Distributor's systems to calculate any
information dependent on or relating to dates on or after January 1,
2000 in the same manner, and with the same functionality, date
integrity and performance, as such systems record, store, process,
calculate and present calendar dates on or before December 31, 1999,
or information dependent on or relating to such dates; or
(c) any loss of functionality or performance with respect to the
introduction of records or processing of data containing dates falling
on or after January 1, 2000.
12. NOTICES
-------
Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Company or the Distributor shall be sufficiently
given if addressed to the party and received by it at its office set forth
below or at such other place as it may from time to time designate in
writing.
To the Company:
Rembrandt Funds
000 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
To the Distributor:
First Data Distributors, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to the Distributor's Chief Legal Officer
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13. GOVERNING LAW/VENUE
-------------------
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, and the applicable provisions of the 1940 Act shall
govern the interpretation, validity, and enforcement of this Agreement. To
the extent the provisions of Massachusetts law or the provisions hereof
conflict with the 1940 Act, the 1940 Act shall control. All actions arising
from or related to this Agreement shall be brought in the state and federal
courts sitting in the City of Boston, and the Distributor and the Company
hereby submit themselves to the exclusive jurisdiction of those courts
14. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and which collectively shall be deemed to
constitute only one instrument.
15. CAPTIONS
--------
The captions of this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
16. SUCCESSORS
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This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and is not intended to
confer upon any other person any rights or remedies hereunder.
17. ARBITRATION
-----------
Any claim or controversy arising out of or related to this Agreement, or
breach hereof, shall be settled by arbitration administered by the American
Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
The parties hereby agree that judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
The parties acknowledge and agree that the performance of the obligations
under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law
provisions in this Agreement, the parties agree that the Federal
Arbitration Act shall govern and control with respect to the provisions of
this Article.
18. CONFIDENTIALITY
---------------
18.1 Confidentiality. In the course of performance under this Agreement, each
---------------
party may have access to and receive disclosure of confidential information
about the other party, including but not limited to that party's financial
information, financial strategies,
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marketing plans, customer profiles, sales estimates, business plans and a
variety of other information which the receiving party should reasonably
consider to be confidential and proprietary (hereinafter referred to as
"Confidential Information"). The contents of this Agreement are also
Confidential Information. Each party shall exercise reasonable care to
safeguard the confidentiality of the Confidential Information of the
other. Confidential Information of the disclosing party shall be used by
the receiving party solely in the performance of the receiving party's
obligations pursuant to this Agreement. The receiving party shall receive
Confidential Information in confidence and not disclose Confidential
Information of the disclosing party to any third party, except as may be
necessary for the receiving party to perform its obligations pursuant to
this Agreement, as required by law or a court of competent jurisdiction
or by a regulatory agency with supervisory responsibilities over the
disclosing party, for confidential consultations with accountants or
attorneys, or as may otherwise be agreed upon in writing by the
disclosing party. Each party may, however, disclose Confidential
Information to its parent corporation, affiliates, subsidiaries and
affiliated companies and employees, provided that each shall use
reasonable efforts to ensure that the Confidential Information is not
duplicated or disclosed in breach of this Agreement.
Each party acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information of the other
party would result in immediate and irreparable harm, and money damages
would be inadequate to compensate the other party for that harm. Each
party shall be entitled to equitable relief, in addition to all other
available remedies, to redress any such breach.
10.2 Ownership. In the course of performance under this Agreement, Investor
---------
Services Group may create reports, marketing materials, promotional
materials, and other materials relating to the Company ("Results"). The
Company acknowledges and agrees that Investor Services Group is the sole
owner of all rights (including, but not limited to, copyrights) to any
Results, or aspects of Results, that are used by Investor Services Group
for administering its clients generally and are not created solely for
the Company. Notwithstanding the foregoing, all rights (including, but
not limited to, copyrights) to any Results that are created solely for
the Company (including, but not limited to, any marketing materials and
promotional materials created solely in connection with the Company) are
solely owned by the Company and are assigned to the Company by Investor
Services Group and the Company shall have a perpetual, royalty free,
worldwide, transferable license to use, copy, transmit, distribute and
modify any Results owned by Investor Services Group as may reasonably be
necessary for the Company to exploit fully all of its rights in any
Results owned by the Company.
19. Obligations of the Company
--------------------------
The Company and the Distributor agree that the obligations of the Company
under the Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Company individually, but are binding only upon
the assets and property of the Company, as provided in the Declaration of
Trust of the Company. The execution and delivery of this Agreement have
been authorized by the Directors of the Company, and signed by an
authorized officer of the Company, acting as such, and neither such
authorization by such Trustee nor such
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execution and delivery by such officer shall be deemed to have been made by
any of them or any shareholder of the Company individually or to impose any
liability on any of them or any shareholder of the Company personally, but
shall bind only the assets and property of the Company as provided in the
Declaration of Trust of the Company. The Company and the Distributor
further agree that the obligations of a Fund under the Agreement shall not
be binding on any other Fund, but are binding only upon the assets and
property of such Fund, as provided in the Declaration of Trust.
20. ENTIRE AGREEMENT
----------------
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous proposals, agreements, contracts,
representations,and understandings, whether written or oral, between the
parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
REMBRANDT FUNDS
By: /s/ Xxx X. Xxxxx
-------------------------
Name: Xxx X. Xxxxx
-----------------------
Title: President
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FIRST DATA DISTRIBUTORS, INC.
By: /s/ [SIGNATURE ILLEGIBLE]
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Name: [SIGNATURE ILLEGIBLE]
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Title: V.P & TReasurer
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13
SCHEDULE A
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to the Distribution Agreement
between Rembrandt Funds and
First Data Distributions, Inc.
Name of Funds
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Money Market Funds
Treasury Money Market Fund
Government Money Market Fund
Money Market Fund
Tax-Exempt Money Market Fund
Fixed Income Funds
Fixed Income Fund
Intermediate Government Fixed Income Fund
Tax-Exempt Fixed Income Fund
International Fixed Income Fund
Limited Volatility Fixed Income Fund
Balanced Funds
Balanced Fund
Equity Funds
Value Fund
Growth Fund
International Equity Fund
Small Cap Fund
Asian Tigers Fund
TransEurope Fund
Latin America Equity Fund
Real Estate Fund
A-1
