Exhibit (e)(1)
DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement") made this 24th day of
July, 2007, by and between TDAX Funds, Inc., a Maryland Corporation (the "Fund")
having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, and ALPS Distributors, Inc., a Colorado corporation (the
"Distributor") having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, the Fund is a registered open-end management investment
company organized as a series Fund offering a number of portfolios of securities
(each a "Portfolio" and collectively the "Portfolios"), each investing primarily
in equity securities selected to reflect the performance of a particular market
index, having filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-1A under the Securities Act of
1933, as amended (the "1933 Act"), and the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Fund intends to create and redeem shares of common stock,
par value $.0001 per Share (the "Shares") of each Portfolio on a continuous
basis at their net asset value only in aggregations constituting a Creation
Unit, as such term is defined in the Registration Statement;
WHEREAS, the Shares of each Portfolio will be listed on the New York
Stock Exchange (the "NYSE") and traded under the symbols set forth in Exhibit A,
attached hereto and incorporated herein by reference;
WHEREAS, the Fund desires to retain the Distributor to act as the
distributor with respect to the issuance and distribution of Creation Units of
Shares of each Fund, hold itself available to receive and process orders for
such Creation Units in the manner set forth in the Fund's Prospectus, and to
enter into arrangements with broker-dealers who may solicit purchases of Shares
and with broker-dealers and others to provide for servicing of shareholder
accounts and for distribution assistance, including broker-dealer and
shareholder support;
WHEREAS, the Distributor is a registered broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and a member of the
National Association of Securities Dealers ("NASD"); and
WHEREAS, the Distributor desires to provide the services described
herein to the Fund.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties agree as follows:
1. Appointment. The Fund hereby appoints the Distributor as the
distributor for Creation Unit aggregations of Shares of each Fund listed in
Exhibit A hereto, as may be amended by the parties from time to time, on the
terms and for the period set forth in this Agreement and subject to the
registration requirements of the 1933 Act and of the laws governing the sale of
securities in the various states, and the Distributor hereby accepts such
appointment and agrees to act in such
capacity hereunder.
2. Definitions. Wherever they are used herein, the following terms have
the following respective meanings:
a. "1940 Act" means the Investment Company Act of 1940 and the rules
and regulations thereunder as amended from time to time;
b. "Prospectus" means the Prospectus and Statement of Additional
Information constituting parts of the Registration Statement of the Fund under
the 1933 Act and the 1940 Act as such Prospectus and Statement of Additional
Information may be amended or supplemented and filed with the Commission from
time to time;
c. "Registration Statement" means the registration statement most
recently filed from time to time by the Fund with the Commission and effective
under the 1933 Act and the 1940 Act, as such registration statement is amended
by any amendments thereto at the time in effect;
d. All capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to such terms in the Registration Statement and the
Prospectus.
3. Duties of the Distributor.
(a) The Fund grants to the Distributor the right to receive all orders
for purchases of Creation Units of each Fund from Participating Parties or DTC
Participants which have executed a Participant Agreement ("Authorized
Participants") and to transmit such orders to the Fund in accordance with the
Registration Statement and Prospectus; provided, however, that nothing herein
shall affect or limit the right and ability of the Fund to accept Deposit
Securities and related Cash Components through or outside the Clearing Process,
and as provided in and in accordance with the Registration Statement and
Prospectus. The Fund acknowledges that the Distributor shall not be obligated to
accept any certain number of orders for Creation Units and nothing herein shall
prevent the Distributor from entering into like distribution arrangements with
other investment companies.
(b) The Distributor agrees to act as agent of the Fund with respect to
the continuous distribution of Creation Units of each Portfolio as set forth in
the Registration Statement and in accordance with the provisions thereof. The
Distributor further agrees as follows: (a) the Distributor shall enter into
Participant Agreements between and among Authorized Participants, the
Distributor and the Transfer Agent in accordance with the Registration Statement
and Prospectus; (b) the Distributor shall generate and transmit confirmations of
Creation Unit purchase order acceptances to the purchaser; (c) the Distributor
shall deliver copies of the prospectus, included in the Registration Statement,
to purchasers of such Creation Units and upon request the Statement of
Additional Information; and (d) the Distributor shall maintain telephonic,
facsimile and/or access to direct computer communications links with the
Transfer Agent.
(c) (i) The Distributor agrees to use all reasonable efforts,
consistent with its other business, to facilitate the purchase of Creation Units
through Authorized Participants in accordance with the procedures set forth in
the Prospectus and the Participant Agreement.
(ii) The Distributor shall, at its own expense, execute selected
or soliciting dealer participant agreements ("Participant Agreements") with
registered broker-dealers and other eligible entities providing for the purchase
of Creation Units of Shares of the Funds and related promotional activities, in
the forms as approved by the Board of Directors of the Fund. The Fund shall not
furnish or cause to be furnished to any person or display or publish any
information or materials relating to the Funds (including, without limitation,
promotional materials and sales literature, advertisements, press releases,
announcements, statements, posters, signs or other similar material), except
such information and materials that have been approved in writing by the
Distributor. Furthermore, the Distributor shall clear and file all advertising,
sales, marketing and promotional materials of the Funds with the NASD.
(d) The Distributor agrees to administer the Distribution Plan on
behalf of the Fund. The Distributor shall, at its own expense, set up and
maintain a system of recording and payments for fees and reimbursement of
expenses disseminated pursuant to this Agreement and any other related
agreements under the Funds' Rule 12b-1 Plans and shall, pursuant to the 1940
Act, report such payment activity under the Distribution Plan to the Fund at
least quarterly.
(e) The Distributor shall provide toll-free lines, by way of the New
York Stock Exchange [Index Share Product Hotline (▇-▇▇▇-▇▇▇-▇▇▇▇)] for direct
investor and shareholder use between the hours of 9:00 a.m. and 8:00 p.m.
Eastern standard time on each day the New York Stock Exchange is open for
business, with appropriate NASD licensed order taking and distribution services
staff.
(f) All activities by the Distributor and its agents and employees
which are primarily intended to result in the sale of Creation Units shall
comply with the Registration Statement and Prospectus, the instructions of the
Board of Directors of the Fund and all applicable laws, rules and regulations
including, without limitation, all rules and regulations made or adopted
pursuant to the 1940 Act by the Commission or any securities association
registered under the 1934 Act, including the NASD and the NYSE.
(g) Except as otherwise noted in the Registration Statement and
Prospectus, the offering price for all Creation Units of Shares will be the
aggregate net asset value of the Shares per Creation Unit of the relevant Fund,
as determined in the manner described in the Registration Statement and
Prospectus.
(h) If and whenever the determination of net asset value is suspended
and until such suspension is terminated, no further orders for Creation Units
will be processed by the Distributor except such unconditional orders as may
have been placed with the Distributor before it had knowledge of the suspension.
In addition, the Fund reserves the right to suspend sales and Distributor's
authority to process orders for Creation Units on behalf of the Fund, upon due
notice to the Distributor, if, in the judgment of the Fund, it is in the best
interests of the Fund to do so. Suspension will continue for such period as may
be determined by the Fund.
(i) The Distributor is not authorized by the Fund to give any
information or to make any representations other than those contained in the
Registration Statement or Prospectus or contained in shareholder reports or
other material that may be prepared by or on behalf of the Fund for the
Distributor's use. The Distributor shall be entitled to rely on and shall not be
responsible in any way for information provided to it by the Fund and its
respective service providers and shall not be liable or responsible for the
errors and omissions of such service providers, provided that the foregoing
shall not be construed to protect the Distributor against any liability to the
Fund or the Fund's shareholders to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
(j) The Board of Directors shall approve the form of any Soliciting
Dealer Agreement to be entered into by the Distributor.
(k) At the request of the Fund, the Distributor shall enter into
agreements in the form specified by the Fund (each a "Participant Agreement")
with participants in the system for book-entry of The Depository Fund Company
and the NSCC as described in the Prospectus.
(l) The Distributor shall ensure that all direct requests for
Prospectuses, Statements of Additional of Information and periodic fund reports,
as applicable, are fulfilled. In addition, the Distributor shall arrange to
provide the NYSE (and any other national stock exchange on which the Shares may
be listed) with copies of Prospectuses to be provided to purchasers in the
secondary market. The Distributor will generally make it known in the brokerage
community that prospectuses and statements of additional information are
available, including by (i) advising the NYSE on behalf of its member firms of
the same, (ii) making such disclosure in all marketing and advertising materials
prepared and/or filed by the Distributor with the NASD, and (iii) as may
otherwise be required by the Commission.
(m) The Distributor agrees to make available, at the Fund's request,
one or more members of its staff to attend Board meetings of the Fund in order
to provide information with regard to the ongoing distribution process and for
such other purposes as may be requested by the Board of Directors of the Fund.
(n) The Distributor shall review all sales and marketing materials for
compliance with applicable laws and conditions of any applicable exemptive
order, and file such materials with the NASD when necessary or appropriate. All
such sales and marketing materials must be approved, in writing, by the
Distributor prior to use.
4. Duties of the Fund.
(a) The Fund agrees to issue Creation Unit aggregations of Shares of
each Portfolio and to request The Depository Fund Company to record on its books
the ownership of such Shares in accordance with the book-entry system procedures
described in the Prospectus in such amounts as the Distributor has requested
through the Transfer Agent in writing or other means of data transmission, as
promptly as practicable after receipt by the Fund of the requisite Deposit
Securities and Cash Component (together with any fees) and acceptance of such
order, upon the terms described in the Registration Statement. The Fund may
reject any order for Creation Units or stop all receipts of such orders at any
time upon reasonable notice to the Distributor, in
accordance with the provisions of the Prospectus.
(b) The Fund agrees that it will take all action necessary to register
an indefinite number of Shares under the ▇▇▇▇ ▇▇▇. The Fund will make available
to the Distributor such number of copies of its then currently effective
Prospectus as the Distributor may reasonably request. The Fund will furnish to
the Distributor copies of all information, financial statements and other
papers, which the Distributor may reasonably request for use in connection with
the distribution of Creation Units. The Fund shall keep the Distributor informed
of the jurisdictions in which Shares of the Fund are authorized for sale and
shall promptly notify the Distributor of any change in this information. The
Distributor shall not be liable for damages resulting from the sale of Shares in
authorized jurisdictions where the Distributor had no information from the Fund
that such sale or sales were unauthorized at the time of such sale or sales.
(c) The Fund represents to the Distributor that the Registration
Statement and Prospectus filed by the Fund with the Commission with respect to
the Fund have been prepared in conformity with the requirements of the 1933 Act,
the 1940 Act and the rules and regulations of the Commission thereunder. The
Fund will notify the Distributor promptly of any amendment to the Registration
Statement or supplement to the Prospectus and any stop order suspending the
effectiveness of the Registration Statement.
5. Fees and Expenses.
(a) The Fund will, with respect to each Portfolio, pay to the
Distributor all fees and expenses pursuant to the terms of any Distribution and
Service Plan in effect for each respective Fund.
(b) The Distributor will bear the following costs and expenses relating
to the distribution of Creation Units of the Portfolio: (a) the costs of
processing and maintaining records of creations of Creation Units; (b) the costs
of maintaining the records required of a broker-dealer registered under the 1934
Act; (c) the expenses of maintaining its registration or qualification as a
dealer or broker under federal or state laws; and (d) all other expenses
incurred in connection with the distribution services contemplated herein,
except as specifically provided in this Agreement.
6. Indemnification.
(a) The Fund agrees to indemnify and hold harmless the Distributor and
each of the directors, officers, agents and employees and any person who
controls the Distributor within the meaning of Section 15 of the 1933 Act (any
of the Distributor, their officers, agents, employees and directors or such
control persons, for purposes of this paragraph, an "Indemnitee") against any
loss, liability, claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith) arising
out of or based upon the claim that the Registration Statement, Prospectus,
shareholder reports or other information filed or made public by the Fund (as
from time to time amended) included an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein (and in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading under the 1933 Act, or any other statute or the common law. However,
the Fund does not agree to indemnify the Distributor or hold it harmless to the
extent that the statement or omission was made in reliance upon, and in
conformity with information furnished to the Fund by or on behalf of the
Distributor. The Fund will also not indemnify any Indemnitee with respect to any
untrue statement or omission made in the Registration Statement or Prospectus
that is subsequently corrected in such document (or an amendment thereof or
supplement thereto) if a copy of the Prospectus (or such amendment or
supplement) was not sent or given to the person asserting any such loss,
liability, claim, damage or expense at or before the written confirmation to
such person in any case where such delivery is required by the 1933 Act and the
Fund had notified the Distributor of the amendment or supplement prior to the
sending of the confirmation. In no case (i) is the indemnity of the Fund in
favor of any Indemnitee to be deemed to protect the Indemnitee against any
liability to the Fund or its shareholders to which the Indemnitee would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Fund to be liable under its indemnity agreement contained in this paragraph with
respect to any claim made against any Indemnitee unless the Indemnitee shall
have notified the Fund in writing of the claim within a reasonable time after
the summons or other first written notification giving information of the nature
of the claim shall have been served upon Indemnitee (or after Indemnitee shall
have received notice of service on any designated agent). However, failure to
notify the Fund of any claim shall not relieve the Fund from any liability which
it may have to any Indemnitee against whom such action is brought otherwise than
on account of its indemnity agreement contained in this paragraph. The Fund
shall be entitled to participate at its own expense in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any claims, but if
the Fund elects to assume the defense, the defense shall be conducted by counsel
chosen by it and satisfactory to Indemnitee, defendant or defendants in the
suit. In the event the Fund elects to assume the defense of any suit and retain
counsel, Indemnitee, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them. If the Fund does not
elect to assume the defense of any suit, it will reimburse the Indemnitee,
defendant or defendants in the suit, for the reasonable fees and expenses of any
counsel retained by them. The Fund agrees to notify the Distributor promptly of
the commencement of any litigation or proceedings against it or any of its
officers or Fundees in connection with the issuance or sale of any of the
Creation Units or the Shares.
(b) The Distributor agrees to indemnify and hold harmless the Fund and
each of its Directors and officers and any person who controls the Fund within
the meaning of Section 15 of the 1933 Act (for purposes of this paragraph, the
Fund and each of its Directors and officers and its controlling persons are
collectively referred to as the "Fund Affiliates") against any loss, liability,
claim, damages or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damages or expense and reasonable
counsel fees incurred in connection therewith) which the Fund Affiliate may
incur under the 1933 Act or any other statute or common law, but only to the
extent that such loss, liability, claim, damages or expense shall arise out of
or be based upon (i) the allegation of any wrongful act of the Distributor or
any of its employees or (ii) allegation that the Registration Statement,
Prospectus, shareholder reports or other information filed or made public by the
Fund (as from time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or necessary in
order to make the statements not misleading, insofar as the statement or
omission was made in reliance upon, and in conformity with information furnished
to the Fund by or on behalf of the Distributor. In no case (i) is the indemnity
of the Distributor in favor of any Fund
Affiliate to be deemed to protect any Fund Affiliate against any liability to
the Fund or its security holders to which such Fund Affiliate would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Distributor to be
liable under its indemnity agreement contained in this paragraph with respect to
any claim made against any Fund Affiliate unless the Fund Affiliate shall have
notified the Distributor in writing of the claim within a reasonable time after
the summons or the first written notification giving information of the nature
of the claim shall have been served upon the Fund Affiliate (or after the Fund
Affiliate shall have received notice of service on any designated agent).
However, failure to notify the Distributor of any claim shall not relieve the
Distributor from any liability which it may have to the Fund Affiliate against
whom the action is brought otherwise than on account of its indemnity agreement
contained in this paragraph. The Distributor shall be entitled to participate at
its own expense in the defense or, if it so elects, to assume the defense of any
suit brought to enforce the claim, but if the Distributor elects to assume the
defense, the defense shall be conducted by counsel chosen by it and satisfactory
to the Fund, its officers and Board and to any controlling person or persons,
defendant or defendants in the suit. In the event that Distributor elects to
assume the defense of any suit and retain counsel, the Fund or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them. If the Distributor does not
elect to assume the defense of any suit, it will reimburse the Fund, its
officers and Board or controlling person or persons, defendant or defendants in
the suit, for the reasonable fees and expenses of any counsel retained by them.
The Distributor agrees to notify the Fund promptly of the commencement of any
litigation or proceedings against it in connection with the issuance and sale of
any of the shares.
(c) No indemnified party shall settle any claim against it for which it
intends to seek indemnification from the indemnifying party, under the terms of
section 6(a) or 6(b) above, without the prior written notice to and consent from
the indemnifying party, which consent shall not be unreasonably withheld. No
indemnified or indemnifying party shall settle any claim unless the settlement
contains a full release of liability with respect to the other party in respect
of such action. This section 6 shall survive the termination of this Agreement.
7. Representations.
(a) The Distributor represents and warrants that (i) it is duly
organized as a Colorado corporation and is and at all times will remain duly
authorized and licensed to carry out its services as contemplated herein; (ii)
the execution, delivery and performance of this Agreement are within its power
and have been duly authorized by all necessary action; and (iii) its entering
into this Agreement or providing the services contemplated hereby does not
conflict with or constitute a default or require a consent under or breach of
any provision of any agreement or document to which the Distributor is a party
or by which it is bound and (iv) it is registered as a broker-dealer under the
1934 Act and is a member of the NASD.
(b) The Distributor represents and warrants that it will maintain an
anti-money laundering program in compliance with Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 ("USA Patriot Act") and all applicable laws and
regulations promulgated thereunder. The Distributor will supply the fund with
copies of the Distributor's anti-money laundering policy and
procedures, and such other relevant certifications and representations regarding
such policy and procedures as the Fund may reasonably request from time to time.
(c) The Distributor represents and warrants that it has procedures in
place reasonably designed to protect the privacy of non-public personal
consumer/customer financial information to the extent required by applicable
law, rule and regulation.
(d) The Fund represents and warrants that (i) it is duly organized as a
Maryland Corporation and is and at all times will remain duly authorized to
carry out its obligations as contemplated herein; (ii) it is registered as an
investment company under the 1940 Act; (iii) the execution, delivery and
performance of this Agreement are within its power and have been duly authorized
by all necessary action; and (iv) its entering into this Agreement does not
conflict with or constitute a default or require a consent under or breach of
any provision of any agreement or document to which the Fund is a party or by
which it is bound.
8. Duration, Termination and Amendment.
(a) This Agreement shall be effective on July 24, 2007, and unless
terminated as provided herein, shall continue for two years from its effective
date, and thereafter from year to year, provided such continuance is approved
annually by the vote of a majority of the Board of Directors, and by the vote of
those Directors who are not "interested persons" of the Fund (the "Independent
Directors") and if a plan under Rule 12b-1 under the 1940 Act is in effect, by
the vote of those Directors who are not "interested persons" of the Fund and who
are not parties to such Plan or this Agreement and have no financial interest in
the operation of such Plan or in any agreements related to such Plan, cast in
person at a meeting called for the purpose of voting on the approval. This
Agreement may be terminated at any time, without the payment of any penalty, as
to each Portfolio (i) by vote of a majority of the Independent Directors or (ii)
by vote of a majority (as defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting
securities of the Fund, on at least sixty (60) days prior written notice to the
Distributor. In addition, this Agreement may be terminated at any time by the
Distributor upon at least sixty (60) days prior written notice to the Fund. This
Agreement shall automatically terminate in the event of its assignment. As used
in this paragraph, the terms "assignment" and "interested persons" shall have
the respective meanings specified in the 1940 Act.
(b) During such period as the Distributor receives compensation
pursuant to the 12b-1 Plans, and this Agreement constitutes a 12b-1 Plan related
agreement, (i) any material amendment to this Agreement requires the approval
provided for in paragraph (a) with respect to annual renewals of this Agreement,
and (ii) any amendment that materially increases the amount to be spent for
distribution services requires the additional approval of the majority of the
Fund's outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of each
affected Fund.
(c) No provision of this Agreement may be changed, waived, discharged
or terminated except by an instrument in writing signed by the party against
which an enforcement of the change, waiver, discharge or termination is sought.
9. Notice. Any notice or other communication authorized or required by
this Agreement to be given to either party shall be in writing and deemed to
have been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the
following address (or such other address as a party may specify by written
notice to the other): if to the Distributor: ALPS Distributors, Inc., ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn.: General Counsel, if to the Fund:. ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
10. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of Colorado, without giving effect to the
choice of laws provisions thereof.
11. Counterparties. 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.
12. Severability. If any provisions of this Agreement shall be held or made
invalid, in whole or in part, then the other provisions of this Agreement shall
remain in force. Invalid provisions shall, in accordance with this Agreement's
intent and purpose, be amended, to the extent legally possible, by valid
provisions in order to effectuate the intended results of the invalid
provisions.
13. Insurance. The Distributor agrees to maintain fidelity bond and
liability insurance coverages which are, in scope and amount, consistent with
coverages customary for distribution activities relating to the Fund. The
Distributor shall notify the Fund upon receipt of any notice of material,
adverse change in the terms or provisions of its insurance coverage. Such
notification shall include the date of change and the reason or reasons
therefor. The Distributor shall notify the Fund of any material claims against
it, whether or not covered by insurance, and shall notify the Fund from time to
time as may be appropriate of the total outstanding claims made by it under its
insurance coverage.
14. Segregation of Fees and Expenses. Amounts paid by each Fund to the
Distributor under its 12b-1 Plan either for distribution related services or
shareholder services shall not be used to pay for the distribution of Shares of,
or shareholder servicing in respect of, any other Fund. However, fees under the
12b-1 Plan attributable to the Fund as a whole shall be allocated to each Fund
according to the method adopted by the Fund's Board of Directors. Fees
attributable to the Fund as a whole shall include any amounts payable under the
12b-1 Plans to the Distributor for its services rendered hereunder. The
Distributor's allocation of such 12b-1 Plan fees shall be subject to review by
the Fund's Board of Directors.
15. Confidentiality. During the term of this Agreement, the Distributor and
the Fund may have access to confidential information relating to such matters as
either party's business, trade secrets, systems, procedures, manuals, products,
contracts, personnel, and clients. As used in this Agreement, "Confidential
Information" means information belonging to one of the parties which is of value
to such party and the disclosure of which could result in a competitive or other
disadvantage to such party. Confidential Information includes, without
limitation, financial information, proposal and presentations, reports,
forecasts, inventions, improvements and other intellectual property; trade
secrets; know-how; designs, processes or formulae; software; market or sales
information or plans; customer lists; and business plans, prospects and
opportunities (such as possible acquisitions or dispositions of businesses or
facilities). Confidential Information includes information developed by either
party in the course of engaging in the activities provided for in this
Agreement, unless: (i) the information is or becomes publicly known through
lawful means; (ii) the information is disclosed to the other party without a
confidential restriction by a third party who rightfully possesses the
information and did not obtain it, either directly or indirectly, from one of
the parties, as the case may be, or any of their respective principals,
employees, affiliated persons, or affiliated entities. The parties understand
and agree that all Confidential Information shall be kept confidential by the
other both during and after the term of this Agreement. The parties further
agree that they will not, without the prior written approval by the other party,
disclose such Confidential Information, or use such Confidential Information in
any way, either during the term of this Agreement or at any time thereafter,
except as required in the course of this Agreement and as proved by the other
party or as required by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first set forth
above.
TDAX FUNDS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:Chief Financial Officer
ALPS DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
EXHIBIT A
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TDAX FUNDS, INC.
Portfolio
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TDAX Independence 2010 Exchange-Traded Fund
TDAX Independence 2020 Exchange-Traded Fund
TDAX Independence 2030 Exchange-Traded Fund
TDAX Independence 2040 Exchange-Traded Fund
TDAX Independence In-Target Exchange Traded Fund