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EXHIBIT (6)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 1st day of June, 1996 by and among THE
GALAXY VIP FUND, a Massachusetts business trust ("Galaxy VIP"), FIRST DATA
INVESTOR SERVICES GROUP, INC., a Massachusetts corporation ("FDISG"), and 440
FINANCIAL DISTRIBUTORS, INC., a Massachusetts corporation (the "Distributor")
and a wholly-owned subsidiary of FDISG.
W I T N E S S E T H
WHEREAS, Galaxy VIP is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Galaxy VIP is currently offering units of beneficial interest,
par value $.001 (the "Shares"), representing interests in the following
investment portfolios: Money Market Fund, Equity Fund, Asset Allocation Fund
and High Quality Bond Fund (individually a "Fund" and collectively the
"Funds"); and
WHEREAS, the Distributor currently serves as distributor for the Funds
pursuant to a Distribution Agreement dated as of March 31, 1995 by and among
Galaxy VIP, FDISG and the Distributor (the "Existing Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Agreement in its entirety to reflect certain changes to the terms thereof;
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein and intending to be legally bound hereby the parties hereto agree
as follows:
1. Service as Distributor.
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1.1 The Distributor will act as Galaxy VIP's disclosed agent for the
distribution of the Shares covered by the registration statement and prospectus
then in effect under the Securities Act of 1933, as amended (the "1933 Act").
The Distributor will have no liability for payment for the purchase of Shares
sold pursuant to this Agreement or with respect to redemptions or repurchases
of Shares.
1.2 The Distributor agrees to use appropriate efforts to solicit
orders for the sale of the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such solicitation.
Galaxy VIP understands that the Distributor is the distributor, and may in the
future be the distributor, of the shares of other investment companies'
portfolios ("Portfolios") including Portfolios having investment
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objectives similar to those of the Funds. Galaxy VIP further understands that
investors and potential investors in the Funds may invest in shares of such
other Portfolios. Galaxy VIP agrees that the Distributor's duties to such
Portfolios shall not be deemed in conflict with its duties to Galaxy VIP under
this paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance appropriate
activities which it deems reasonable which are primarily intended to result in
the sale of the Shares, including, but not limited to, advertising,
compensation of underwriters, dealers and sales personnel, the printing and
mailing of prospectuses to other than current shareholders, and the printing
and mailing of sales literature.
1.4 All activities by the Distributor and its agents and 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 pursuant to the 1940 Act by the Securities and Exchange Commission or
any securities association registered under the Securities Exchange Act of
1934, as amended.
1.5 The Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Funds.
1.6 The Distributor will transmit any orders received by it for
purchase or redemption of the Shares to Galaxy VIP's transfer agent and
custodian.
1.7 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, Galaxy VIP's officers may decline to accept any orders for, or make any
sales of, the Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.8 The Distributor may enter into selling agreements with selected
dealers or other institutions with respect to the offering of the Shares to the
public. Each such selling agreement will provide (a) that all payments for
purchases of Shares will be sent directly from the dealer or such other
institution to the Funds' transfer agent and (b) that, if payment is not made
with respect to purchases of Shares at the customary or required time for
settlement of the transaction, the Distributor will have the right to cancel
the sale of the Shares ordered by the dealer or such other institution, in
which case the dealer or such other institution will be responsible for any
loss suffered by the Fund or the Distributor resulting from such cancellation.
The Distributor may also as disclosed agent for a Fund sell Shares of that Fund
to individual investors, such
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transactions to be specifically approved by an officer of that Fund.
1.9 The Distributor will send a confirmation to each purchaser of
Shares under this Agreement. Such confirmations will comply with all
applicable Federal and state laws and rules and regulations of authorized
regulatory bodies and will clearly state that the Distributor is acting as
agent in the transaction and that all remittances, registration instructions
and certifications for redemption should be sent directly to the Funds'
transfer agent. Such confirmations will also set forth the mailing address and
delivery address of the Funds' transfer agent.
1.10 Galaxy VIP 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.
1.11 Galaxy VIP shall furnish from time to time, for use in
connection with the sale of the Shares, such written information with respect
to the Funds and the Shares as the Distributor may reasonably request; and
Galaxy VIP warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent. Galaxy VIP
shall also furnish the Distributor upon request with (a) unaudited semi-annual
statements of the Funds' books and accounts, (b) quarterly earnings statements
of the Funds, (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 Funds'
financial condition as the Distributor may reasonably request.
1.12 Galaxy VIP represents to the Distributor that all registration
statements and prospectuses filed by Galaxy VIP with the Securities and
Exchange Commission under the 1933 Act with respect to the Shares have been
prepared in conformity with the requirements of said Act and rules and
regulations of the Securities and Exchange Commission thereunder. As used in
this agreement the terms "registration statement" and "prospectus" shall mean
any registration statement and prospectuses filed with the Securities and
Exchange Commission and any amendments and supplements thereto, including
statements of additional information incorporated therein by reference, which
at any time shall have been filed with the Securities and Exchange Commission.
Galaxy VIP represents and warrants to the Distributor that any registration
statement and prospectus, when such registration statement becomes effective,
will contain all statements required to be stated therein in conformity with
said Act and the rules and regulations of the Securities and Exchange
Commission; that all statements of fact contained in any such
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registration statement and prospectus will be true and correct when such
registration statement becomes effective; and that neither any registration
statement nor any prospectus when such registration statement becomes effective
will include an untrue 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. Galaxy VIP 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 Galaxy VIP's
counsel, be necessary or advisable. Galaxy VIP shall promptly notify the
Distributor of any advice given to it by Galaxy VIP's counsel regarding the
necessity or advisability so to amend or supplement such registration statement
or prospectus. If Galaxy VIP shall not propose such amendment or amendments
and/or supplement or supplements within fifteen days after receipt by Galaxy
VIP of a written request from the Distributor to do so, the Distributor may, at
its option, terminate this Agreement. Galaxy VIP 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 Galaxy VIP's right
to file at any time such amendments to any registration statement and/or
statements to any prospectus, of whatever character, as Galaxy VIP may deem
advisable, such right being in all respects absolute and unconditional.
1.13 Galaxy VIP authorizes the Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares. Galaxy VIP agrees to indemnify, defend and hold the
Distributor, its several officers and directors, and any institution who
controls the Distributor within the meaning of Section 15 of the 1933 Act, free
and harmless from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which the
Distributor, its officers and directors, or any such controlling person, may
incur under the 1933 Act, or under common law or otherwise, arising out of or
based upon any untrue statement, or alleged untrue statement, of a material
fact contained in any registration statement or any prospectus or arising out
of or based upon any omission, or alleged omission, to state a material fact
required to be stated in either any registration statement or any prospectus or
necessary to make the statements in either thereof not misleading; provided,
however, that Galaxy VIP's agreement to indemnify the Distributor, its officers
or directors, and any such controlling person shall not be deemed to cover any
claims, demands, liabilities or expenses arising out of any statements or
representations contained in any registration statement or in any
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prospectus that were furnished in writing to Galaxy VIP or its counsel by the
Distributor and used in the answers to the registration statement or in the
corresponding statements made in the prospectus, or arising out of or based
upon any omission or alleged omission to state a material fact in connection
with the giving of such information required to be stated in such answers or
necessary to make the answers not misleading; and further provided that Galaxy
VIP's agreement to indemnify the Distributor and Galaxy VIP's representations
and warranties hereinbefore set forth in paragraph 1.12 shall not be deemed to
cover any liability to Galaxy VIP or its shareholders to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of the Distributor's
reckless disregarding of its obligations and duties under this Agreement.
Galaxy VIP's agreement to indemnify the Distributor, its officers and
directors, and any such controlling person, as aforesaid, is expressly
conditioned upon Galaxy VIP's being notified of any action brought against the
Distributor, its officers or directors, or any such controlling person, such
notification to be given by letter or by telegram addressed to Galaxy VIP at
its principal office in Westboro, Massachusetts and sent to Galaxy VIP by the
person against whom such action is brought, within 10 days after the summons or
other first legal process shall have been served. The failure so to notify
Galaxy VIP of any such action shall not relieve Galaxy VIP from any liability
which Galaxy VIP may have to the person against whom such action is brought by
reason of any such untrue, or allegedly untrue, statement or omission, or
alleged omission, otherwise than on account of Galaxy VIP's indemnity agreement
contained in this paragraph 1.12. Galaxy VIP will be entitled to assume the
defense of any suit brought to enforce any such claim, demand or liability,
but, in such case, such defense shall be conducted by counsel of good standing
chosen by Galaxy VIP and approved by the Distributor, which approval shall not
unreasonably be withheld. In the event Galaxy VIP elects to assume the defense
of any such suit and retain counsel of good standing approved by the
Distributor, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them; but in case Galaxy
VIP does not elect to assume the defense of any such suit, or in case the
Distributor reasonably does not approve of counsel chosen by Galaxy VIP, Galaxy
VIP will reimburse the Distributor, its officers and directors, or the
controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by the Distributor or them.
Galaxy VIP's indemnification agreement contained in this paragraph 1.12 and
Galaxy VIP'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 Distributor, its officers and directors, or any controlling
person, and shall survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to the
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Distributor's benefit, to the benefit of its several officers and directors,
and their respective estates, and to the benefit of the controlling persons and
their successors. Galaxy VIP agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against Galaxy VIP or any of its
officers or trustees in connection with the issuance and sale of any Shares.
1.14 FDISG and the Distributor agree to indemnify, defend and hold
Galaxy VIP, its several officers and trustees, and any person who controls
Galaxy VIP within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the costs of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which Galaxy
VIP, its officers or trustees or any such controlling person, may incur under
the 1933 Act, or under common law or otherwise, but only to the extent that
such liability or expense incurred by Galaxy VIP, its officers or trustees, or
such controlling person resulting from such claims or demands, shall arise out
of or be based upon any untrue, or alleged untrue, statement of a material fact
contained in information furnished in writing by the Distributor to Galaxy VIP
or its counsel and used in the answers to any of the items of the registration
statement or in the corresponding statements made in the prospectus, or shall
arise out of or be based upon any omission, or alleged omission, to state a
material fact in connection with such information furnished in writing by the
Distributor to Galaxy VIP or its counsel required to be stated in such answers
or necessary to make such information not misleading. The agreement of FDISG
and the Distributor to indemnify Galaxy VIP, its officers and trustees, and any
such controlling person, as aforesaid, is expressly conditioned upon FDISG's
and the Distributor's being notified of any action brought against Galaxy VIP,
its officers or trustees, or any such controlling person, such notification to
be given by letter or telegram addressed to FDISG and the Distributor at their
principal offices in Westboro, Massachusetts, and sent to FDISG and the
Distributor by the person against whom such action is brought, within 10 days
after the summons or other first legal process shall have been served. FDISG
and the Distributor shall have the right of first control of the defense of
such action, with counsel of their own choosing, satisfactory to Galaxy VIP, if
such action is based solely upon such alleged misstatement or omission on the
Distributor's part, and in any other event Galaxy VIP, its officers or trustees
or such controlling person shall each have the right to participate in the
defense or preparation of the defense of any such action. The failure so to
notify FDISG and the Distributor of any such action shall not relieve FDISG and
the Distributor from any liability which FDISG and the Distributor may have to
Galaxy VIP, its officers or trustees, or to such controlling person by reason
of any such untrue or
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alleged untrue statement, or omission or alleged omission, otherwise than on
account of FDISG's and the Distributor's indemnity agreement contained in this
paragraph 1.14.
1.15 No Shares shall be offered by either the Distributor or Galaxy
VIP under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by Galaxy VIP 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
10(a)(2) of the 1933 Act is not on file with the Securities and Exchange
Commission; provided, however, that nothing contained in this paragraph 1.15
shall in any way restrict or have any application to or bearing upon Galaxy
VIP's obligation to repurchase Shares from any shareholder in accordance with
the provisions of Galaxy VIP's prospectus or Declaration of Trust.
1.16 Galaxy VIP agrees to advise the Distributor as soon as
reasonably practical by a notice in writing delivered to the Distributor:
(a) of any request by the Securities and Exchange
Commission for amendments to the registration statement or prospectus
then in effect or for additional information;
(b) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the effectiveness of
the registration statement or prospectus then in effect or the
initiation by service of process on Galaxy VIP of any proceeding for
that purpose;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the registration statement or
prospectus then in effect or which requires the making of a change in
such registration statement or prospectus in order to make the
statements therein not misleading; and
(d) of all action of the Securities and Exchange
Commission with respect to any amendment to any registration statement
or prospectus which may from time to time be filed with the Securities
and Exchange Commission.
For purposes of this paragraph 1.16, informal requests by or acts of the
Staff of the Securities and Exchange Commission shall not be deemed actions of
or requests by the Securities and Exchange Commission.
1.17 The Distributor agrees on behalf of itself and its employees
to treat confidentially and as proprietary information
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of Galaxy VIP all records and other information relative to Galaxy VIP and its
prior, present or potential shareholders, and not to use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder, except after prior notification to and approval in writing by
Galaxy VIP, which approval shall not be unreasonably withheld and may not be
withheld where the Distributor may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such information
by duly constituted authorities, or when so requested by Galaxy VIP.
1.18 This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
1.19 The names "The Galaxy VIP Fund" and "Trustees of The Galaxy
VIP Fund" refer respectively to the Trust created and the Trustees, as trustees
but not individually or personally, acting from time to time under a
Declaration of Trust dated May 27, 1992 which is hereby referred to and a copy
of which is on file at the office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of Galaxy VIP. The obligations of
"The Galaxy VIP Fund" entered into in the name or on behalf thereof by any of
the Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, Shareholders, or
representatives of Galaxy VIP personally, but bind only the Trust Property, and
all persons dealing with any class of Shares of Galaxy VIP must look solely to
the Trust Property belonging to such class for the enforcement of any claims
against Galaxy VIP.
1.20 FDISG and the Distributor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by Galaxy VIP in connection
with the performance by the Distributor of its services hereunder, except for a
loss resulting from willful misfeasance, bad faith or negligence on the part of
the Distributor in the performance of its duties or from reckless disregard by
it of its obligations and duties under this Agreement.
2. Term.
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This Agreement shall become effective as of June 1, 1996 and, unless
sooner terminated as provided herein, shall continue until May 31, 1997 and
thereafter shall continue automatically for successive annual periods ending on
May 31 of each year, provided such continuance is specifically approved at
least annually by (a) Galaxy VIP's Board of Trustees or (b) by a vote of a
majority (as defined in the 0000 Xxx) of the outstanding voting securities of
Galaxy VIP, provided that in either event the continuance is also approved by a
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majority of Galaxy VIP's trustees who are not parties to this Agreement and who
are not interested persons (as defined in the 0000 Xxx) of any party to
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this Agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval. This Agreement is terminable without penalty, on
sixty days' notice, by Galaxy VIP's Board of Trustees, by vote of a majority
(as defined in the 0000 Xxx) of the outstanding voting securities of Galaxy
VIP, or by the Distributor. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 1940 Act).
3. Counterparts.
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This Agreement may be executed 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
THE GALAXY VIP FUND
By:/s/Xxxx X. X'Xxxxx
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Attest:/s/W. Xxxxx XxXxxxxx, III President
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Secretary
FIRST DATA INVESTOR SERVICES
GROUP, INC.
By:
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Title:
Attest:
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440 FINANCIAL DISTRIBUTORS, INC.
By:
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Title:
Attest:
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