DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ____ day of
May, 1999 (the "Agreement") by and between the Light
Revolution Fund, Inc., a Maryland corporation (the
"Company"), and First Data Distributors, Inc. (the
"Distributor"), a Massachusetts corporation.
WHEREAS, the Company is registered as a
diversified, open-end management investment company
under the Investment Company Act of 1940, as amended
(the "1940 Act"); and is currently offering shares of
its Common Stock (such shares of all 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-1A (the "Registration Statement");
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 the Fund's Registration
Statement is effective with the SEC.
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 on behalf of the Company
for the distribution of the Shares covered by the
Registration Statement 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. For the services rendered
under this Agreement, the Company agrees to pay
the Distributor the fees set forth in Schedule B
to this Agreement.
1.2 The Distributor agrees to use efforts deemed
appropriate by the Distributor to solicit orders
for the sale of the Shares at prices determined as
hereinafter provided and on terms hereinafter set
forth, all subject to applicable federal and state
laws and regulations and to the Company's Articles
of Incorporation and Bylaws and the Registration
Statement and will undertake such advertising and
promotion as it believes reasonable in connection
with such solicitation; provided, however, that
each Fund will bear the expenses incurred and
other payments made in accordance with the
provisions of the Agreement and any plan now or
hereafter adopted with respect to any Fund
pursuant to Rule 12b-1 under the 1940 Act (the
"Plans"). To the extent that the Distributor
receives shareholder services fees under any
shareholder services plan adopted by the Company,
the Distributor agrees to furnish, and/or enter
into arrangements with others for the furnishing
of, personal and/or account maintenance services
with respect to the relevant shareholders of the
Company as may be required pursuant to such plan.
It is contemplated that the Distributor will enter
into sales or servicing agreements with securities
dealers, financial institutions and other industry
professionals, such as investment advisers,
accountants and estate planning firms. The
Distributor agrees to provide to the Company and
its Board of Directors at least quarterly a
written report of the amounts expended under the
Plans and the purposes for which such expenditures
were made. In addition, the Distributor agrees to
provide the Company and its Board of Directors a
report of the amount of sales charges imposed,
retained and reallowed by the Distributor as of
the Company's fiscal year end.
1.3 The Company understands that the Distributor is
now, and may in the future be, the distributor of
the shares of several investment companies or
series (collectively, the "Investment Entities"),
including Investment Entities having investment
objectives similar to those of the Company. The
Company further understands that investors and
potential investors in the Company may invest in
shares of such other Investment Entities. The
Company agrees that the Distributor's duties to
such Investment Entities shall not be deemed in
conflict with its duties to the Company under this
Section 1.3.
1.4 The Distributor shall not utilize any materials in
connection with the sale or offering of Shares
except the Company's prospectus and statement of
additional information and such other materials as
the Company shall provide or approve. The
Distributor agrees to provide legal/compliance
review of all sales literature and advertisements
("Sales Material") prepared for use by the Company
in advance of the use of such Sales Material. The
Company agrees to incorporate such changes to such
Sales Materials as the Distributor shall
reasonably request. The Distributor will file
such Sales Materials and obtain such approvals for
their use as may be required by the SEC, NASD or
state securities commissioners.
1.5 All activities by the Distributor and its
employees, as distributor of the Shares, shall
comply with all applicable laws, rules and
regulations, including, without limitation, all
rules and regulations made or adopted by the SEC
or the National Association of Securities Dealers.
1.6 The Distributor will transmit any orders received
by it for purchase or redemption of the Shares to
the transfer agent for the Company.
1.7 Whenever in its judgment such action is warranted
by unusual market, economic or political
conditions or abnormal circumstances of any kind,
the Company may decline to accept any orders for,
or make any sales of, the Shares until such time
as the Company deems it advisable to accept such
orders and to make such sales, and the Company
advises the Distributor promptly of such
determination.
1.8 The Distributor may enter into selling agreements
with selected dealers or other institutions with
respect to the offering of Shares to the public,
provided that the Company shall approve the form
of such agreements and provided further that, in
entering into any such agreements, the Distributor
shall act only on its own behalf as principal and
not as agent for the Company. Shares sold to
selected dealers or other institutions by the
Distributor shall be for resale by such selected
dealers or other institutions only at the prices
as set forth herein. 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 Company agrees to pay all costs and expenses
in connection with the registration of Shares
under the Securities Act of 1933, as amended, and
all expenses in connection with maintaining
facilities for the issue and transfer of Shares
and for supplying information, prices and other
data to be furnished by the Fund hereunder, and
all expenses in connection with the preparation
and printing of the Fund's prospectuses and
statements of additional information for
regulatory purposes and for distribution to
shareholders. Other than the expenses payable by
the Company, the Distributor shall bear all
expenses incident to the sale and distribution of
Shares issued or sold hereunder, including without
limitation, any sales commissions or other
expenses payable to persons referred to in Section
1.8, above.
1.10 The Company agrees at its own expense to execute
any and all documents and to furnish any and all
information and otherwise to take all actions that
may be reasonably necessary in connection with the
qualification of the Shares for sale in such
states as the Distributor may designate. The
Company shall notify the Distributor in writing of
the states in which the Shares may be sold and
shall notify the Distributor in writing of any
changes to the information contained in the
previous notification.
1.11 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
a Fund's books and accounts prepared by the
Company, (b) quarterly earnings statements
prepared by the Company, (c) a monthly itemized
list of the securities in the Funds, (d) monthly
balance sheets as soon as practicable after the
end of each month, and (e) from time to time such
additional information regarding the financial
condition of the Company as the Distributor may
reasonably request.
1.12 The Company represents to the Distributor that all
Registration Statements and prospectuses filed by
the Company with the SEC under the 1933 Act with
respect to the Shares have been prepared in
conformity with the requirements of the 1933 Act
and the rules and regulations of the SEC
thereunder. As used in this Agreement, the term
"Registration Statement" shall mean any
Registration Statement and any prospectus and any
statement of additional information relating to
the Company filed with the SEC and any amendments
or supplements thereto at any time filed with the
SEC. Except as to information included in the
Registration Statement in reliance upon
information provided to the Company by the
Distributor or any affiliate of the Distributor
expressly for use in the Registration Statement,
the Company represents and warrants to the
Distributor that any Registration Statement, when
such Registration Statement becomes effective,
will contain statements required to be stated
therein in conformity with the 1933 Act and the
rules and regulations of the SEC; that all
statements of fact contained in any such
Registration Statement will be true and correct
when such Registration Statement becomes
effective; and that no Registration Statement when
such Registration Statement becomes effective will
include an 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. The Company may but shall not be
obligated to propose from time to time such
amendment or amendments to any Registration
Statement and such supplement or supplements to
any prospectus as, in the light of future
developments, may, in the opinion of the Company's
counsel, be necessary or advisable. The Company
shall promptly notify the Distributor of any
advice given to it by its counsel regarding the
necessity or advisability of amending or
supplementing such Registration Statement. 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 Statements and/or supplements to any
prospectus, of whatever character, as the Company
may deem advisable, such right being in all
respects absolute and unconditional.
1.13 The Company authorizes the Distributor to use any
prospectus or statement of additional information
in the form furnished from time to time in
connection with the sale of the Shares. The
Company agrees to indemnify and hold harmless the
Distributor, its officers, directors, and
employees, and any person who controls the
Distributor within the meaning of Section 15 of
the 1933 Act, free and harmless (a) from and
against any and all claims, costs, expenses
(including reasonable attorneys' fees) losses,
damages, charges, payments and liabilities of any
sort or kind which the Distributor, its officers,
directors, employees or any such controlling
person may incur under the 1933 Act, under any
other statute, at common law or otherwise, arising
out of or based upon: (i) any untrue statement,
or alleged untrue statement, of a material fact
contained in the Company's Registration Statement,
prospectus, statement of additional information,
or sales literature (including amendments and
supplements thereto), or (ii) any omission, or
alleged omission, to state a material fact
required to be stated in the Company's
Registration Statement, prospectus, statement of
additional information or sales literature
(including amendments or supplements thereto),
necessary to make the statements therein not
misleading, provided, however, that insofar as
losses, claims, damages, liabilities or expenses
arise out of or are based upon any such untrue
statement or omission or alleged untrue statement
or omission made in reliance on and in conformity
with information furnished to the Company by the
Distributor or its affiliated persons for use in
the Company's Registration Statement, prospectus,
or statement of additional information or sales
literature (including amendments or supplements
thereto), such indemnification is not applicable;
and (b) from and against any and all such claims,
demands, liabilities and expenses (including such
costs and counsel fees) which the Distributor, its
officers and directors, or such controlling
person, may incur in connection with this
Agreement or the Distributor's performance
hereunder, unless such claims, demands,
liabilities and expenses (including such costs and
counsel fees) arise by reason of the Distributor's
willful misfeasance, bad faith or negligence in
the performance of the Distributor's duties
hereunder. The Company acknowledges and agrees
that in the event that the Distributor, at the
request of the Company, is required to give
indemnification comparable to that set forth in
clause (a) of this Section 1.13 to any entity
selling Shares of the Company or providing
shareholder services to shareholders of the
Company and such entity shall make a claim for
indemnification against the Distributor, the
Distributor shall make a similar claim for
indemnification against the Company.
1.14 The Distributor agrees to indemnify and hold
harmless the Company, its several officers and
Directors and each person, if any, who controls a
Fund within the meaning of Section 15 of the 1933
Act against any and all claims, costs, expenses
(including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any
sort or kind which the Company, its officers,
Directors or any such controlling person may incur
under the 1933 Act, under any other statute, at
common law or otherwise, but only to the extent
that such liability or expense incurred by the
Company, its officers or Directors, or any
controlling person resulting from such claims or
demands arose out of the acquisition of any Shares
by any person which may be based upon any untrue
statement, or alleged untrue statement, of a
material fact contained in the Company's
Registration Statement, prospectus or statement of
additional information (including amendments and
supplements thereto), or any omission, or alleged
omission, to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, if such statement or
omission was made in reliance upon information
furnished or confirmed in writing to the Company
by the Distributor or its affiliated persons (as
defined in the 1940 Act), or as a result of the
Distributor's failure to comply with the terms of
this Agreement.
1.15 In any case in which one party hereto (the
"Indemnifying Party") may be asked to indemnify or
hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will
notify the Indemnifying Party promptly after
identifying any situation which it believes
presents or appears likely to present a claim for
indemnification (an "Indemnification Claim")
against the Indemnifying Party, although the
failure to do so shall not prevent recovery by the
Indemnified Party, and shall keep the Indemnifying
Party advised with respect to all developments
concerning such situation. The Indemnifying Party
shall have the option to defend the Indemnified
Party against any Indemnification Claim which may
be the subject of this indemnification, and, in
the event that the Indemnifying Party so elects,
such defense shall be conducted by counsel chosen
by the Indemnifying Party and satisfactory to the
Indemnified Party, and thereupon the Indemnifying
Party shall take over complete defense of the
Indemnification Claim and the Indemnified Party
shall sustain no further legal or other expenses
in respect of such Indemnification Claim. The
Indemnified Party will not confess any
Indemnification Claim or make any compromise in
any case in which the Indemnifying Party will be
asked to provide indemnification, except with the
Indemnifying Party's prior written consent. The
obligations of the parties hereto under this
Section 1.15 and Section 3.1 shall survive the
termination of this Agreement.
In the event that the Company is the Indemnifying
Party and the Indemnifying Party does not elect to
assume the defense of any such suit, or in case
the Distributor reasonably does not approve of
counsel chosen by the Company, or in case there is
a conflict of interest between the Company or the
Distributor, the Company will reimburse the
Distributor, its officers, directors and
employees, or the controlling person or persons
named as defendant or defendants in such suit, for
the fees and expenses of any counsel retained by
the Distributor or them. The Company's
indemnification agreement contained in this
Section 1.15 and Section 3.1 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,
directors and employees, 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, directors and
employees, and their respective estates and to the
benefit of the controlling persons and their
successors. 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 directors in connection
with the issue and sale of any Shares.
1.16 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
1.16 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, Articles of Incorporation, or bylaws.
1.17 The Company agrees to advise the Distributor as
soon as reasonably practical by a notice in
writing delivered to the Distributor:
(a) in the event of the issuance by the SEC of
any stop order suspending the effectiveness of the
Registration Statement, prospectus or statement of
additional information then in effect or the
initiation by service of process on the Company of
any proceeding for that purpose;
(b) of the happening of any event that makes
untrue any statement of a material fact made in
the Registration Statement, prospectus or
statement of additional information then in effect
or that requires the making of a change in such
Registration Statement, prospectus or statement of
additional information in order to make the
statements therein not misleading; and
(c) of all actions of the SEC with respect to any
amendments to any Registration Statement,
prospectus or statement of additional information
which may from time to time be filed with the SEC.
For purposes of this section, informal requests by
or acts of the Staff of the SEC shall not be
deemed actions of or requests by the SEC.
1.18 The Distributor agrees to coordinate the
registration of the Company with the National
Securities Clearing Corporation ("NSCC") and file
required Fund/SERV reports with NSCC.
1.19 Shares offered for sale or sold by the Distributor
or any selected dealer or other institution referred to
in Section 1.8, above ("Selected Dealers"), for the
account of the Company shall be so offered or sold at a
price per Share determined in accordance with the
prospectus relating to the sale of such Shares. The
price the Company shall receive for any Shares
purchased by an investor from the Company through the
Distributor or a Selected Dealer shall be the net asset
value ("NAV") used in determining the public offering
price applicable to the sale of such Shares, as
calculated in the manner set forth in the Registration
Statement. The Distributor may reallocate any portion
of any front-end sales charge which is imposed on such
sales to Selected Dealers as set forth in the
prospectus, subject to applicable NASD rules. Any
portion of any front-end sales charge which is not so
reallocated shall be retained by the Distributor for
the purpose of funding marketing or advertising
expenses of the Company.
1.20 Shares tendered for redemption by the Distributor
or a Selected Dealer on behalf of an investor shall be
redeemed in accordance with the applicable provisions
as set forth in the Registration Statement at a price
equal to the NAV of the Company's portfolio as
determined in accordance with the procedures set forth
in the Registration Statement, less any applicable
redemption fee.
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 two years
and thereafter shall be renewed for successive one-
year terms, provided such continuance is
specifically approved at least annually by (i) the
Company's Board of Directors 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 Directors 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
sixty days' written notice, by the Company's Board
of Directors, 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, all reasonable expenses associated with
movement of records and materials and conversion
thereof will be borne by the Company.
3. Limitation of Liability
3.1 The Distributor shall 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 Neither party may assert any cause of action
against the other party under this Agreement that
accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration
proceedings) alleging such cause of action.
3.3 Each party shall have the duty to mitigate damages
for which the other party may become responsible.
3.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS
AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE
LIABLE FOR LOST PROFITS OR CONSEQUENTIAL DAMAGES.
4. EXCLUSION OF WARRANTIES
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, THE DISTRIBUTOR
DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, MADE TO THE COMPANY, A FUND OR
ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF
DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES
OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES
PROVIDED UNDER THIS AGREEMENT. THE DISTRIBUTOR
DISCLAIMS ANY WARRANTY OF TITLE OR NON-
INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
5. Modifications and Waivers
No change, termination, modification, or waiver of
any term or condition of the Agreement shall be
valid unless in writing signed by each party. No
such writing shall be effective as against the
Distributor unless said writing is executed by a
Senior Vice President, Executive Vice President or
President of the Distributor. A party's waiver of
a breach of any term or condition in the Agreement
shall not be deemed a waiver of any subsequent
breach of the same or another term or condition.
6. No Presumption Against Drafter
The Distributor and the Company have jointly
participated in the negotiation and drafting of
this Agreement. The Agreement shall be construed
as if drafted jointly by the Company and the
Distributor, and no presumptions arise favoring
any party by virtue of the authorship of any
provision of this Agreement.
7. Publicity
Neither the Distributor nor the Company shall
release or publish news releases, public
announcements, advertising or other publicity
relating to this Agreement or to the transactions
contemplated by it without prior review and
written approval of the other party; provided,
however, that either party may make such
disclosures as are required by legal, accounting
or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance
with the other party.
8. Severability
The parties intend every provision of this
Agreement to be severable. If a court of
competent jurisdiction determines that any term or
provision is illegal or invalid for any reason,
the illegality or invalidity shall not affect the
validity 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 parties. Without limiting
the generality of this paragraph, if a court
determines that any remedy stated in this
Agreement has failed of its essential purpose,
then all other provisions of this Agreement,
including the limitations on liability and
exclusion of damages, shall remain fully
effective.
9. Force Majeure
No party shall be liable for any default or delay
in the performance of its obligations under this
Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i)
fire, flood, elements of nature or other acts of
God; (ii) any outbreak or escalation of
hostilities, war, riots or civil disorders in any
country, (iii) any act or omission of the other
party or any governmental authority; (iv) any
labor disputes (whether or not the employees'
demands are reasonable or within the party's power
to satisfy); or (v) nonperformance by a third
party or any similar cause beyond the reasonable
control of such party, including without
limitation, failures or fluctuations in
telecommunications or other equipment. In any
such event, the non-performing party shall be
excused from any further performance and
observance of the obligations so affected only for
so long as such circumstances prevail and such
party continues to use commercially reasonable
efforts to recommence performance or observance as
soon as practicable.
10. 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:
Light Revolution Fund, Inc.
000 Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
To the Distributor:
First Data Distributors, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to the
Distributor's Chief Legal Officer
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.
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 reasonable care to
safeguard the confidentiality of the Confidential
Information of the other. The Company and the
Distributor may each use the Confidential
Information only to exercise its rights or perform
its duties under this Agreement. 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 its employees who have
a need to know the Confidential Information to
perform work for the other, provided that each
shall use reasonable efforts to ensure that the
Confidential Information is not duplicated or
disclosed by its 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 the 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 completely
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
limitation, 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
party which now exist or come into the control or
possession of the other.
11.4 The Company acknowledges that breach of the
restrictions on use, dissemination or disclosure
of any Confidential Information would result in
immediate and irreparable harm, and money damages
would be inadequate to compensate the Distributor
for that harm. The Distributor shall be entitled
to equitable relief, in addition to all other
available remedies, to redress any such breach.
12. The execution and delivery of this Agreement have
been authorized by the Directors of the Company,
and signed by an authorized officer of the
Company, acting as such, and neither such
authorization by such Directors nor such execution
and delivery by such officer shall be deemed to
have been made by any of them or any shareholder
of the Company individually or to impose any
liability on any of them or any shareholder of the
Company personally.
13. Entire Agreement
This Agreement, including all Schedules hereto,
constitutes the entire agreement between the
parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous
proposals, agreements, contracts, representations,
and understandings, whether written or oral,
between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed all as of the day
and year first above written.
LIGHT REVOLUTION FUND, INC.
By:______________________
Name:____________________
Title:___________________
FIRST DATA DISTRIBUTORS, INC.
By:______________________
Name:____________________
Title:___________________
SCHEDULE A
to the Distribution Agreement
between the Light Revolution Fund, Inc. and
First Data Distributors, Inc.
Name of Funds
Light Revolution Fund
SCHEDULE B
to the Distribution Agreement
between the Light Revolution Fund, Inc. and
First Data Distributors, Inc.
Fees
Notwithstanding anything contained in Section 1.2
to the contrary, the Company shall pay to the
Distributor an annual fee equal to the lesser of (a)
$10,000 per Fund or (b) 0.01% of the aggregate average
net assets of the Funds. Such fee shall be payable in
equal monthly installments on the first business day of
each month. Compensation under this Agreement shall be
calculated and accrued daily and the amounts of the
daily accruals shall be paid monthly in arrears.
In addition, the Company agrees to reimburse the
Distributor for its reasonable out-of-pocket expenses
in providing services hereunder as mutually agreed to
by the parties from time to time.
In no event shall fees payable by the Fund under
this Agreement exceed the permissible payments
authorized under the Company's Distribution Plan
pursuant to Rule 12b-1 under the 1940 Act.
