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EXHIBIT 6(a)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 1st day of June, 1996 by and among
THE GALAXY FUND, a Massachusetts business trust ("Galaxy"), 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 is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, Galaxy is currently offering units of beneficial interest, par
value $.001 (the "Shares"), representing interests in the following investment
portfolios: Money Market Fund, Government Fund, Tax-Exempt Fund, U.S. Treasury
Fund, Institutional Treasury 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, ShortTerm 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
and Rhode Island Municipal Bond Fund (individually a "Fund" and collectively the
"Funds"); 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 Distributor currently serves as distributor for the Funds
pursuant to a Distribution Agreement dated as of March 31, 1995, as amended, by
and among Galaxy, FDISG and the Distributor (the "Existing Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Agreement in its entirety in order to reflect certain additional 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:
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1. Service as Distributor.
1.1 The Distributor will act as Galaxy'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 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 objectives similar to
those of the Funds. Galaxy further understands that investors and potential
investors in the Funds may invest in shares of such other Portfolios. Galaxy
agrees that the Distributor's duties to such Portfolios shall not be deemed in
conflict with its duties to Galaxy 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; provided, however, that each Fund will bear the expenses
incurred and other payments made in accordance with the provisions of this
Agreement and any plan now 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").
1.4 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 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.
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1.6 The Distributor will transmit any orders received by it for
purchase or redemption of the Shares to Galaxy'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'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 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 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 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 Galaxy's
Declaration of Trust and the then current prospectus) plus, except with respect
to certain classes of persons set forth in the then current prospectus, (b) a
sales charge which shall be the percentage of the offering price of such Load
Shares as set forth in the then current prospectus. 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
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concessions are described in the then current prospectus, 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 Galaxy in connection
with the offering or sale of the Load Shares to the public or otherwise.
1.11 If any Load Shares sold by Galaxy are redeemed or repurchased by
Galaxy 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 Galaxy 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 Galaxy or by the Distributor as disclosed agent (or tendered for
redemption) within seven business days after the date of confirmation of such
initial purchases.
1.12 Galaxy 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.
1.13 Galaxy 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 warrants that
the statements contained in any such information shall fairly show or represent
what they purport to show or represent. Galaxy 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.
1.14 Galaxy represents to the Distributor that all registration
statements and prospectuses filed by Galaxy 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 the 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 prospectus filed with
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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 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 Securities and
Exchange Commission; 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 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 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's counsel, be
necessary or advisable. Galaxy shall promptly notify the Distributor of any
advice given to it by Galaxy's counsel regarding the necessity or advisability
so to amend or supplement such registration statement or prospectus. If Galaxy
shall not propose such amendment or amendments and/or supplement or supplements
within fifteen days after receipt by Galaxy of a written request from the
Distributor to do so, the Distributor may, at its option, terminate this
Agreement. Galaxy 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's right to file at any time such amendments to any
registration statement and/or supplements to any prospectus, of whatever
character, as Galaxy may deem advisable, such right being in all respects
absolute and unconditional.
1.15 Galaxy 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 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
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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'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 prospectus that were furnished in writing to Galaxy 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's agreement to indemnify the Distributor and Galaxy's
representations and warranties hereinbefore set forth in paragraph 1.14 shall
not be deemed to cover any liability to Galaxy 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's agreement to indemnify the Distributor, its officers and
directors, and any such controlling person, as aforesaid, is expressly
conditioned upon Galaxy'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 at its
principal office in Westboro, Massachusetts and sent to Galaxy 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 of
any such action shall not relieve Galaxy from any liability which Galaxy 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's indemnity agreement contained in this
paragraph 1.15. Galaxy 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 and
approved by the Distributor, which approval shall not unreasonably be withheld.
In the event Galaxy 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 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, Galaxy 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
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of any counsel retained by the Distributor or them. Galaxy's indemnification
agreement contained in this paragraph 1.15 and Galaxy'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 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 agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against Galaxy or any of its
officers or trustees in connection with the issue and sale of any Shares.
1.16 FDISG and the Distributor agree to indemnify, defend and hold
Galaxy, its several officers and trustees, and any person who controls Galaxy
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, 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, 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 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 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, 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, 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, if such action is based solely upon such
alleged misstatement or omission on the Distributor's part, and in any other
event Galaxy, its officers or trustees or such controlling person shall
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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, its officers or trustees, or to
such controlling person by reason of any such untrue or 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 1.16.
1.17 No Shares shall be offered by either the Distributor or Galaxy
under any of the provisions of this Agreement and no orders for the purchase or
sale of Shares hereunder shall be accepted by Galaxy 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 1.17 shall in any
way restrict or have any application to or bearing upon Galaxy's obligation to
repurchase Shares from any shareholder in accordance with the provisions of
Galaxy's prospectus or Declaration of Trust.
1.18 Galaxy 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 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.
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For purposes of this paragraph 1.18, 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.
1.19 The Distributor agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of Galaxy all records and
other information relative to Galaxy 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, 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.
1.20 This Agreement shall be governed by the laws of the Commonwealth
of Massachusetts.
1.21 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 Galaxy. 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
Galaxy personally, but bind only the Trust Property, and all persons dealing
with any class of Shares of Galaxy must look solely to the Trust Property
belonging to such class for the enforcement of any claims against Galaxy.
1.22 FDISG and the Distributor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by Galaxy 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.
1.23 The Distributor agrees to be responsible for implementing and
operating the Plans in accordance with the terms thereof.
1.24 With respect to CDSC Shares, the Distributor shall impose a CDSC
in connection with the redemption of such CDSC
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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 prospectus. The
Distributor may retain (or receive from Galaxy, as the case may be) all of any
CDSC. The Distributor may pay to broker-dealers or other persons to whom such
CDSC Shares are sold a commission or other payment to the extent consistent with
the then current prospectus and applicable rules and regulations.
2. Term.
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 (i) Galaxy's Board of Trustees or (ii) by a vote of a majority (as
defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting securities of Galaxy,
provided that in either event the continuance is also approved by a majority of
Galaxy's trustees who are not parties to this Agreement and who are not
interested persons (as defined in the ▇▇▇▇ ▇▇▇) 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 sixty days' notice,
by Galaxy's Board of Trustees, by vote of a majority (as defined in the ▇▇▇▇
▇▇▇) of the outstanding voting securities of Galaxy, or by the Distributor. This
Agreement will also terminate automatically in the event of its assignment (as
defined in the 1940 Act).
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3. Counterparts.
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 Agreement to be
executed by their officers designated below as of the day and year first above
written.
THE GALAXY FUND
Attest:/s/W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III By:/s/▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Secretary President
FIRST DATA INVESTOR SERVICES
GROUP, INC.
Attest: By:
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Title: Title:
440 FINANCIAL DISTRIBUTORS, INC.
Attest: By:
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Title: Title:
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