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EXHIBIT (6)(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 1st day of June, 1997 (the "Agreement")
by and between The Galaxy Fund (the "Company"), a Massachusetts business trust,
and First Data Distributors, Inc. (the "Distributor"), a Massachusetts
corporation.
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 is currently offering units of beneficial interest (such units of all
classes and series are hereinafter called the "Shares"), representing interests
in investment portfolios of the Company identified on Schedule A hereto (the
"Funds") which are registered with the Securities and Exchange Commission (the
"SEC") pursuant to the Company's Registration Statement on Form N-IA (the
"Registration Statement"); and
WHEREAS, a front-end sales charge may be imposed in connection with the
sale of certain Shares of one or more of the Funds ("Load Shares"); and
WHEREAS, a contingent deferred sales charge ("CDSC") may be imposed in
connection with the redemption of certain Shares of one or more of the Funds
("CDSC Shares"); and
WHEREAS, the Company desires to retain the Distributor as distributor for
the Funds to provide for the sale and distribution of the Shares of the Funds
identified on Schedule A 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.
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
1.1 The Distributor will act as the Company's disclosed agent for the
distribution of the Shares covered by the Registration Statement 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 efforts deemed appropriate by the
Distributor to solicit orders for the sale of the Shares and will
undertake such advertising and promotion as it believes reasonable in
connection with such
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solicitation. The Distributor shall, at its own expense, finance
appropriate activities which it deems reasonable which are primarily
intended to result in the sale of 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; provided,
however, that each Fund shall bear the expenses incurred and other
payments made in accordance with the provisions of this Agreement and any
plan now in effect or hereafter adopted with respect to any one or more
series of Shares of such Fund pursuant to Rule 12b-1 under the 1940 Act
(collectively, the "Plans").
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 Funds. The
Company further understands that investors and potential investors in the
Funds 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 agrees to provide (a) two wholesalers dedicated to
supporting sales of Shares of the Funds and Galaxy Fund II, and (b) one or
more persons, during normal business hours, to respond to telephone
questions with respect to the Funds.
1.5 The Distributor may enter into selling agreements with selected dealers or
other, institutions with respect to the offering of Shares to the public.
Each selling agreement will provide that (a) all payments for purchases of
Shares will be sent directly from the dealer or such other institution to
the Funds' transfer agent and (b) 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
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 any Fund or the Distributor resulting from such cancellation. The
Distributor may also act as disclosed agent for a Fund and sell Shares of
that Fund to individual investors, such transactions to be specifically
approved by an officer of the Company.
1.6 The Distributor will send a confirmation to each purchaser of Shares under
this Agreement. Such confirmations will
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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.
1.7 All Load Shares offered for sale by the Distributor shall be offered for
sale to the public at a price per share (the "Offering Price") equal to
(a) their net asset value (determined in the manner set forth in the
Company's Declaration of Trust and the then current Prospectuses) plus,
except with respect to certain classes of persons and transactions set
forth in the then current Prospectuses, (b) a sales charge which shall be
the percentage of the Offering Price of such Load Shares as set forth in
the then current Prospectuses. The Offering Price, if not an exact
multiple of one cent, shall be adjusted to the nearest cent. Concessions
by the Distributor to dealers and other institutions shall be set forth in
either the selling agreements between the Distributor and such dealers and
institutions as from time to time amended, or if such concessions are
described in the then current Prospectuses, shall be as so set forth. No
dealer or other institution who enters into a selling agreement with the
Distributor shall be authorized to act as agent for the Company in
connection with the offering or sale of the Load Shares to the public or
otherwise.
1.8 If any Load Shares sold by the Company are redeemed or repurchased by the
Company or by the Distributor as disclosed agent or are tendered for
redemption within seven business days after the date of confirmation of
the original purchase of said Load Shares, the Distributor shall forfeit
the sales charge received by the Distributor in respect of such Shares,
provided that the portion, if any, of such amount re-allowed by the
Distributor to dealers or other institutions shall be repayable to the
Company only to the extent recovered by the Distributor from the dealer or
other institution involved. The Distributor shall include in each selling
agreement with such dealers and other institutions a corresponding
provision for the forfeiture by them of their concession with respect to
the Load Shares sold by them or their principals and redeemed or
repurchased by the Company or by the Distributor as disclosed agent (or
tendered for redemption) within seven business days after the date of
confirmation of such initial purchases.
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1.9 The Distributor agrees to be responsible for implementing and operating
the Plans in accordance with the terms thereof.
1.10 With respect to CDSC Shares, the Distributor shall impose a CDSC in
connection with the redemption of such CDSC Shares, not to exceed a
specified percentage of the original purchase price of the Shares, as from
time to time set forth in the then current Prospectuses. The Distributor
may retain (or receive from the Company, as the case may be) all or any
CDSC. The Distributor may, but shall not be required to, pay to
broker-dealers or other persons through whom such CDSC Shares are sold a
commission or other payment to the extent consistent with the then current
Prospectuses and applicable rules and regulations.
1.11 The Distributor shall not utilize any materials in connection with the
sale or offering of Shares except the Company's then current Prospectuses
and Statements of Additional Information and such other materials as the
Company shall provide or approve.
1.12 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 SEC or the National
Association of Securities Dealers.
1.13 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent and custodian for the
Company.
1.14 Whenever in their judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind,
officers of the Company 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, and the Company shall notify
the Distributor promptly of any such determination.
1.15 The Company agrees to pay all costs and expenses in connection with the
registration of Shares under the 1933 Act 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
Company hereunder, and all expenses in connection with the preparation and
printing of the Company's Prospectuses and Statements of Additional
Information for regulatory purposes and for distribution to existing
shareholders.
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1.16 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 are to be sold and shall notify the Distributor in writing of any
changes to the information contained in the previous notification.
1.17 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; and the Company
warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent. The
Company shall also furnish the Distributor upon request with: (a) audited
annual statements and unaudited semi-annual statements of the Funds' books
and accounts prepared by the Company, (b) quarterly earnings statements of
the Funds 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 Funds' financial condition as the Distributor
may reasonably request.
1.18 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 terms "Registration Statement"
and "Prospectus" shall mean any Registration Statement and any Prospectus
(including any Statement of Additional Information incorporated therein by
reference) relating to the Company filed with the SEC and any amendments
or supplements thereto at any time filed with the SEC. The Company
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
the 1933 Act and the rules and regulations of the SEC; that all statements
of fact contained in any such Registration Statement and Prospectus will
be true and correct when such Registration Statement becomes effective;
and that no Registration Statement or 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
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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 Distributor's counsel, be necessary or
advisable. The Distributor shall promptly notify the Company of any advice
given to it by its counsel regarding the necessity or advisability of
amending or supplementing such Registration Statement or Prospectus. If
the Company shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Company
of a written request from the Distributor to do so, the Distributor may,
at its option, terminate this Agreement. 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 Statement and/or supplements to any Prospectus, of whatever
character, as the Company may deem advisable, such right being in all
respects absolute and unconditional.
1.19 The Company authorizes the Distributor (and dealers pursuant to any
agreements described in Section 1.5 above) to use any Prospectus in the
form furnished by the Company from time to time in connection with the
sale of the Shares. The Company agrees to indemnify, defend and hold the
Distributor, its several officers and directors, 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, demands,
liabilities and expenses (including the cost of investigating or defending
such claims, demands or liabilities and any reasonable 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 any Registration Statement or any Prospectus or necessary to
make the statements in either thereof not misleading; provided, however,
that the Company'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
representations or statements contained in any Registration Statement or
in any Prospectus that were
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furnished in writing to the Company or its counsel by the Distributor
expressly for use 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 such information furnished in writing by the Distributor
to the Company or its counsel and required to be stated in such answers or
necessary to make such answers not misleading; and further provided that
the Company's agreement to indemnify the Distributor and the Company's
representations and warranties hereinbefore set forth in Section 1.18
shall not be deemed to cover any liability to the Company 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 disregard of its duties
and obligations under this Agreement. The Company's indemnification
agreement contained in this Section 1.19 and the Company'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 delivery of any Shares. The Company agrees promptly to
notify the Distributor of the commencement of any litigation or
proceedings against the Company or any of its officers or trustees in
connection with the issue and sale of any Shares. This agreement to
indemnify will inure exclusively to the Distributor's benefit, to the
benefit of its several officers and directors and their respective
estates, and to the benefit of its controlling persons and their
successors.
1.20 The Distributor agrees to indemnify, defend and hold the Company, its
several officers and trustees, and any person who controls the Company
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 reasonable counsel fees incurred in connection
therewith) which the Company, 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 the Company, 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 the Company or its
counsel expressly for use in the answers to any of the items of the
Registration Statement or in the corresponding statements made in the
Prospectus, or shall
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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 the Company or its counsel and required to be stated
in such answers or necessary to make such information not misleading. The
Distributor's indemnification agreement contained in this Section 1.20 and
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 Company or its officers and trustees, and shall survive the
delivery of any Shares. The Distributor agrees promptly to notify the
Company of the commencement of any litigation or proceedings against the
Distributor or any of its officers, directors or controlling persons in
connection with the issuance and sale of any of the Shares.
1.21 (a) 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
in writing 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 relieve the Indemnifying Party from any
liability which it may otherwise have to the Indemnified Party, and the
Indemnified Party shall keep the Indemnifying Party advised with respect
to all developments concerning such situation. The Indemnifying Party
shall be entitled to participate at its own expense in the defense, or if
it so elects, to assume the defense of, 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
of good standing chosen by the Indemnifying Party and approved by the
Indemnified Party, which approval shall not be unreasonably withheld. In
the event the Indemnifying Party elects to assume the defense of any such
Indemnification Claim and retain such counsel, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by the
Indemnified Party. 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.
(b) In the event that the Company is the Indemnifying Party and the
Indemnifying Party does not elect to assume the defense of any such
Indemnification Claim, or in case the Distributor reasonably does not
approve of counsel chosen by the Company, the Company will reimburse the
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Distributor, its officers, directors and employees, or the controlling
person or persons named as defendant or defendants in such Indemnification
Claim, for the fees and expenses of any counsel retained by the
Distributor or them.
(c) The obligations of the parties hereto under Sections 1.19 through 1.21
shall survive the termination of this Agreement.
1.22 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 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 1.22 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 or
Declaration of Trust.
1.23 The Company 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 SEC for amendments to the Registration
Statement or Prospectus then in effect or for additional information;
(b) in the event of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or Prospectus then in
effect or the initiation by service of process on the Company 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 that 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 actions of the SEC with respect to any amendments to any
Registration Statement or Prospectus which may from time to time be
filed with the SEC.
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For purposes of this Section 1.23, informal requests by or acts of the
staff of the SEC shall not be deemed actions of or requests by the SEC.
2. TERM
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
one-year term and thereafter shall continue automatically for successive
one- year terms, provided such continuance is specifically approved at
least annually by (i) the Company's Board of Trustees or (ii) by a vote of
a majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the Company, provided that in either
event the continuance is also approved by a majority of the Trustees who
are not parties to this Agreement and who are not interested persons (as
defined in the 0000 Xxx) of any party to 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 at least sixty days'
written notice, by the Company's Board of Trustees, by vote of a majority
(as defined in the 1940 Act and Rule 18f-2 thereunder) of the outstanding
voting securities of the Company, or by the Distributor. 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 and provided
that the Distributor is not in default under this Agreement at the time of
such termination notice, all reasonable expenses associated with movement
of records and materials and conversion thereof to a successor distributor
will be borne by the Company.
3. LIMITATION OF LIABILITY
3.1 The Distributor shall not be liable to the Company for any error of
judgment 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.
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
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ITS OR THEIR DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL DAMAGES,
PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION 3.3 SHALL BE
CONSTRUED SO AS TO LIMIT THE RIGHT OF ANY SHAREHOLDER OF THE COMPANY,
WHETHER SUING ON HIS, HER OR ITS OWN BEHALF OR DERIVATIVELY THROUGH THE
COMPANY, TO CONSEQUENTIAL DAMAGES.
4. 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 Company unless said writing
is executed by the President of the Company. 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.
5. 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 and the Distributor, and no
presumptions arise favoring any party by virtue of the authorship of any
provision of this Agreement.
6. 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 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.
7. 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 of 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
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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 shall
remain fully effective.
8. 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 circumstances beyond such
party's reasonable control. In any such event, the nonperforming 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. MISCELLANEOUS
10.1 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:
Xxxx X. X'Xxxxx, President
The Galaxy Fund
c/o Hasbro, Inc.
000 Xxxxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx 00000
with a copy to:
W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx LLP
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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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
10.2 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.
10.3 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.
10.4 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.
10.5 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.
11. CONFIDENTIALITY
11.1 The parties agree that the Proprietary Information (defined below) and the
contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensers.
The Company and the Distributor shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality
of the Confidential Information of the other as it would to protect its
own Confidential Information. The Company and the Distributor may use the
Confidential Information only to exercise their respective rights or
perform their respective duties under this Agreement. Except as otherwise
required by law and except as disclosed in the Company's Registration
Statement and
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filed as an exhibit thereto, the Company and the Distributor shall not
duplicate, sell or disclose to others the Confidential Information of the
other, in whole or in part, without the prior written permission of the
other party. The Company and the Distributor may, however, disclose
Confidential Information to their respective employees who have a need to
know the Confidential Information to perform work for the other, provided
that the Company and the Distributor shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed by
their respective employees in breach of this Agreement. The Company and
the Distributor may also disclose the Confidential Information to
independent contractors, auditors and professional advisors, provided they
first agree in writing to be bound by confidentiality obligations
substantially similar to this Section 11. Notwithstanding the previous
sentence, in no event shall either the Company or the Distributor disclose
the Confidential Information to any competitor of the other without
specific, prior written consent.
11.2 Proprietary Information means:
(a) any data or information that is competitively sensitive material, and
not generally known to the public, including but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Company or the Distributor,
their respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them;
(b) any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in the
sense that its confidentiality affords the Company or the Distributor a
competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
11.3 Confidential Information includes, without limitations all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either
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party which now exist or come into the control or possession of the other.
11.4 Notwithstanding the foregoing, it is hereby understood and agreed by the
parties hereto that any marketing strategies, financing plans, customer
profiles, sales estimates, business plans or similar items prepared or
developed by the Distributor for the benefit of the Company shall be
considered the Proprietary Information of the Company and nothing in this
Agreement shall be construed to prevent or prohibit the Company from
disclosing such Proprietary Information to a successor distributor.
12. OBLIGATIONS OF THE TRUST
The names "The Galaxy Fund" and "Trustees of The Galaxy 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 March 31, 1986 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 the Company. The
obligations of "The Galaxy 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 the Company personally, but
bind only the Trust Property, and all persons dealing with any class of
Shares of the Company must look solely to the Trust Property belonging to
such class for the enforcement of any claims against the Company.
13. ENTIRE AGREEMENT
This Agreement, including the Schedule 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.
-15-
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
THE GALAXY FUND
By: /s/ Xxxx X. X'Xxxxx
-------------------
Name: Xxxx X. X'Xxxxx
---------------
Title: President
---------
FIRST DATA DISTRIBUTORS, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-16-
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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.
THE GALAXY FUND
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
FIRST DATA DISTRIBUTORS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
Title: President and CEO
-----------------
A-1
18
SCHEDULE A
NAME OF FUNDS
Money Market Fund
Government Fund
Tax-Exempt Fund
U.S. Treasury Fund
Institutional Government Money Market Fund
Connecticut Municipal Money Market Fund
Massachusetts Municipal Money Market Fund
Equity Value Fund
Equity Growth Fund
Equity Income Fund
International Equity Fund
Asset Allocation Fund
Small Company Equity Fund
Growth and Income Fund
Small Cap Value Fund
Short-Term Bond Fund
Intermediate Government Income Fund
High Quality Bond Fund
Corporate Bond Fund
Tax-Exempt Bond Fund
New York Municipal Bond Fund
Connecticut Municipal Bond Fund
Massachusetts Municipal Bond Fund
Rhode Island Municipal Bond Fund
A-2
