DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this _____ day
of __________, 1995 by and between Xxxxxx Insight Funds Trust, a
Massachusetts Business Trust (the "Trust"), and FUNDS
DISTRIBUTOR, INC., a Massachusetts corporation ("Funds
Distributor").
WHEREAS, the Trust is an open-end management investment
Trust and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to retain Funds Distributor as
Distributor for the Trust's separate portfolios - Xxxxxx Insight
Equity Income Fund, Xxxxxx Insight Growth Fund, Xxxxxx Insight
Small-Cap Opportunity Fund, Xxxxxx Insight Index Fund, Xxxxxx
Insight International Fund, Xxxxxx Insight Balanced Fund, Xxxxxx
Insight Convertible Fund, Xxxxxx Insight Bond Fund, Xxxxxx
Insight Intermediate Government Bond Fund, Xxxxxx Insight Tax-
Exempt Intermediate Bond Fund and Xxxxxx Insight Tax-Exempt Bond
Fund (individually, a "Fund" and collectively, the "Funds") to
provide for the sale and distribution of shares of the Funds
(the "Shares"), and Funds Distributor is willing to render such
services;
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:
I. DELIVERY OF DOCUMENTS
The Trust has delivered to Funds Distributor copies of
each of the following documents and will deliver to it all
future amendments and supplements thereto, if any:
(a) The Trust's most recent Prospectus(es) and
Statement(s) of Additional Information and all amendments and
supplements thereto (collectively, the "Prospectuses").
II. DISTRIBUTION
1. Appointment of Distributor. The Trust hereby
appoints Funds Distributor as Distributor of the Funds' Shares
and Funds Distributor hereby accepts such appointment and agrees
to render the services and duties set forth in this Section II.
In the event that the Trust establishes one or more portfolios
other than the Funds with respect to which it desires to retain
Funds Distributor to act as distributor hereunder, the Trust
shall notify Funds Distributor in writing. If Funds Distributor
is willing to render such services, it shall notify the Trust
whereupon such portfolio shall become one of the "Funds"
hereunder.
2. Services and Duties.
(a) The Trust agrees to sell through Funds Distributor,
as agent, from time to time during the term of this Agreement,
Shares upon the terms and at the current offering price as
described in the applicable Prospectus. Funds Distributor will
act only in its own behalf as principal in making agreements
with selected dealers or others for the sale and redemption of
Shares, and shall sell Shares only at the offering price thereof
as set forth in the applicable Prospectus. Prior to making any
payments from its own resources to financial institutions,
securities dealers or other industry professionals for
shareholder service, administration or distribution assistance
for a Fund, Funds Distributor will enter into written agreements
in a form satisfactory to the Trust's Board of Trustees. Funds
Distributor shall devote appropriate efforts to effect sales of
Shares of each of the Funds, but shall not be obligated to sell
any certain number of Shares.
(b) In all matters relating to the sale and redemption
of Shares, Funds Distributor will act in conformity with the
Trust's Declaration of Trust, By-Laws and applicable
Prospectuses and with the instructions and directions of the
Board of Trustees of the Trust and will conform to and comply
with the requirements of the 1933 Act, the 1940 Act, the
regulations of the National Association of Securities Dealers,
Inc. and all other applicable Federal or state laws and
regulations.
(c) Subject to the expenses that the Equity Income Fund,
Growth Fund, Small-Cap Opportunity Fund, Index Fund,
International Fund, Balanced Fund, Convertible Fund, Bond Fund,
Intermediate Government Bond Fund, Tax-Exempt Intermediate Bond
Fund and the Tax-Exempt Bond Fund agree to defray pursuant to
the Funds' service plan (the "Service Plans"), Funds Distributor
will bear the cost of printing and distributing any Prospectus
(including any supplement or amendment thereto), provided,
however, that Funds Distributor shall not be obligated to bear
the expenses incurred by the Trust in connection with (x) the
preparation and printing of any supplement or amendment to a
Registration Statement or Prospectus necessary for the continued
effective registration of the Shares under the 1933 Act or state
securities laws; and (y) the printing and distribution of any
Prospectus, supplement or amendment thereto for existing
shareholders of the Shares described therein.
(d) All Shares of the Equity Income Fund, Growth Fund,
Small-Cap Opportunity Fund, Index Fund, International Fund,
Balanced Fund, Convertible Securities Fund, Bond Fund,
Intermediate Government Bond Fund, Tax-Exempt Intermediate Bond
Fund and the Tax-Exempt Bond Fund offered for sale by Funds
Distributor shall be offered for sale to the public at a price
per share (the "offering price") equal to their net asset value
(determined in the manner set forth in the applicable
Prospectuses). The offering price, if not an exact multiple of
one cent, shall be adjusted to the nearest cent. Concessions
paid by Funds Distributor to broker-dealers and other persons
shall be set forth in either the selling agreements between
Funds Distributor and such broker-dealers and persons or, if
such concessions are described in the applicable Prospectuses,
shall be as so set forth. No broker-dealer or other person who
enters into a selling or distribution and servicing agreement
with Funds Distributor shall be authorized to act as agent for
the Trust in connection with the offering or sale of Shares to
the public or otherwise.
(e) If any Shares sold by Funds Distributor under the
terms of this Agreement are redeemed or repurchased by the Trust
or by Funds Distributor as agent or are tendered for redemption
within seven business days after the date of confirmation of the
original purchase of said Shares, Funds Distributor shall
forfeit the amount above the net asset value received by it with
respect to such Shares, provided that the portion, if any, of
such amount re-allowed by Funds Distributor to broker-dealers or
other persons shall be repayable to the Trust only to the extent
recovered by Funds Distributor from the broker-dealer or other
persons concerned. Funds Distributor shall include in the form
of agreement with such broker-dealers and other persons a
corresponding provision for the forfeiture by them of their
concession with respect to Shares sold by them or their
principals and redeemed or repurchased by the Trust or by Funds
Distributor as agent (or tendered for redemption) within seven
business days after the date of confirmation of such initial
purchases.
3. Compensation under the Trust's Non-Money Market
Funds'
Service Plans.
The Trust shall reimburse the Distributor for all or part
of the cost of preparing and printing brochures and other
promotional materials and of delivering prospectuses and those
materials to prospective Class A shareholders of a non-money
market fund of the Trust by paying on an annual basis up to the
greater of $100,000 or 0.05% of such Fund's average daily net
assets. Payment will be made as promptly as is possible after
the last day of each month this Agreement is in effect, and will
be based on the average daily net assets for the prior month of
that Fund. Payments by the Trust under this Agreement are
authorized pursuant to the non-money market funds' Service Plan
for Class A Shares adopted in accordance with Rule 12b-1 under
the 1940 Act. The Trust further agrees that it shall provide
notice to Funds Distributor at least 30 days prior to the
effective date of a rate decrease under the Service Plan.
So long as the Class A Service Plan is in effect, the
Distributor shall provide to the Trust's Board of Trustees at
least quarterly, a written report of the amounts expended by the
Distributor pursuant to the Service Plan and the purpose for
which such expenditures were made.
4. Sales and Redemptions.
(a) The Trust shall pay all costs and expenses in
connection with the registration of the Shares under the 1933
Act, and all expenses in connection with maintaining facilities
for the issue and transfer of the Shares and for supplying
information, prices and other data to be furnished by the Trust
hereunder, and all expenses in connection with preparing,
printing and distributing the Prospectuses except as set forth
in subsection 2(c) of Section II hereof.
(b) The Trust shall execute all documents, furnish all
information and otherwise take all actions which may be
reasonably necessary in the discretion of the Trust's officers
in connection with the qualification of the Shares for sale in
such states as Funds Distributor may designate to the Trust and
the Trust may approve, and the Trust shall pay all filing fees
which may be incurred in connection with such qualification.
Funds Distributor shall pay all other expenses incurred by Funds
Distributor in connection with the sale of the Shares, except as
otherwise specifically provided in this Agreement.
(c) The Trust shall have the right to suspend the sale
of Shares at any time in response to conditions in the
securities markets or otherwise, and to suspend the redemption
of Shares of any Fund at any time permitted by the 1940 Act or
the rules of the SEC ("Rules").
(d) The Trust reserves the right to reject any order for
Shares, but will not do so arbitrarily or without reasonable
cause.
III. CONFIDENTIALITY
Funds Distributor will treat confidentially and as
proprietary information of the Trust all records and other
information relative to the Trust, to the Trust's prior or
current shareholders and to those persons or entities who
respond to Funds Distributor's inquiries concerning investment
in the Trust, and, except as provided below, will not use such
records and information for any purpose other than the
performance of its responsibilities and duties hereunder. Any
other use by Funds Distributor of the information and records
referred to above may be made only after prior notification to
and approval in writing by the Trust. Such approval shall not
be unreasonably withheld and may not be withheld where: (i)
Funds Distributor may be exposed to civil or criminal contempt
proceedings for failure to divulge such information; (ii) Funds
Distributor is requested to divulge such information by duly
constituted authorities; or (iii) Funds Distributor is so
requested by the Trust.
IV. INDEMNIFICATION
1. Trust Representation. The Trust represents and
warrants to Funds Distributor that at all times the Registration
Statement and Prospectuses will in all material respects conform
to the applicable requirements of the 1933 Act and the Rules
thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading, except that no representation or warranty in this
subsection shall apply to statements or omissions made in
reliance upon and in conformity with written information
furnished to the Trust by or on behalf of and with respect to
Funds Distributor expressly for use in the Registration
Statement or Prospectuses.
2. Funds Distributor Representation. Funds Distributor
represents and warrants to the Trust that it is duly organized
as a Massachusetts corporation and is and at all times will
remain registered as a broker/dealer under the Securities
Exchange Act of 1934 and a member in good standing with the
National Association of Securities Dealers and is otherwise duly
authorized and licensed to carry out its services as
contemplated herein.
3. Trust Indemnification. The Trust, on behalf of each
Fund, will indemnify, defend and hold harmless Funds
Distributor, its several officers and directors, and any person
who controls Funds Distributor within the meaning of Section 15
of the 1933 Act, from and against any losses, claims, damages or
liabilities, joint or several, to which any of them may become
subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectuses or in
any application or other document executed by the Trust, or
arise out of, or are based upon, information furnished on behalf
of a Fund, filed in any state in order to qualify the Shares
under the securities or blue sky laws thereof ("Blue Sky
Application"), or arise out of, or are based upon, the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and will reimburse Funds Distributor, its
several officers and directors, and any person who controls
Funds Distributor within the meaning of Section 15 of the 1933
Act, for any legal or other expenses reasonably incurred by any
of them in investigating, defending or preparing to defend any
such action, proceeding or claim; provided, however, that the
Trust shall not be liable in any case to the extent that such
loss, claim, damage or liability arises out of, or is based
upon, any untrue statement, alleged untrue statement, or
omission or alleged omission made in the Registration Statement,
the Prospectuses, any Blue Sky Application or any application or
other document executed by or on behalf of the Trust in reliance
upon and in conformity with written information furnished to the
Trust by or on behalf of and with respect to Funds Distributor
specifically for inclusion therein.
The Trust shall not indemnify any person pursuant to this
subsection 3 unless the court or other body before which the
proceeding was brought has rendered a final decision on the
merits that such person was not liable by reason of his willful
misfeasance, bad faith or gross negligence in the performance of
his duties, or his reckless disregard of his obligations and
duties, under this Agreement ("disabling conduct") or, in the
absence of such a decision, a reasonable determination (based
upon a review of the facts) that such person was not liable by
reason of disabling conduct has been made by the vote of a
majority of a quorum of directors of the Trust who are neither
"interested persons" of the Trust (as defined in the 0000 Xxx)
nor parties to the proceeding, or by an independent legal
counsel in a written opinion.
The Trust shall advance attorneys' fees and other expenses
incurred by any person in defending any claim, demand, action or
suit which is the subject of a claim for indemnification
pursuant to this subsection 3, so long as: (i) such person shall
undertake to repay all such advances unless it is ultimately
determined that he is entitled to indemnification hereunder; and
(ii) such person shall provide security for such undertaking, or
the Trust shall be insured against losses arising by reason of
any lawful advances, or a majority of a quorum of the
disinterested, non-party directors of the Trust (or an
independent legal counsel in a written opinion) shall determine
based on a review of readily available facts (as opposed to a
full trial-type inquiry) that there is reason to believe that
such person ultimately will be found entitled to indemnification
hereunder.
4. Funds Distributor Indemnification. Funds
Distributor will indemnify, defend and hold harmless the Trust,
the Trust's several officers and trustees and any person who
controls the Trust within the meaning of Section 15 of the 1933
Act, from and against any losses, claims, damages or
liabilities, joint or several, to which any of them may become
subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any breach of
its representations, warranties and agreements herein, or which
arise out of, or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement, the Prospectuses, any Blue Sky
Application or any application or other documents executed by or
on behalf of the Trust or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which
statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Trust by
or on behalf of and with respect to Funds Distributor
specifically for inclusion therein, and will reimburse the
Trust, the Trust's several officers and directors, and any
person who controls the Trust within the meaning of Section 15
of the 1933 Act, for any legal or other expenses reasonably
incurred by any of them in investigating, defending or preparing
to defend any such action, proceeding or claim, as such expenses
are incurred.
5. General Indemnity Provision. No indemnifying party
shall be liable under its indemnity agreement contained in
subsection 3 or 4 hereof with respect to any claim made against
such indemnifying party unless the indemnified party shall have
notified the indemnifying party in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served
upon the indemnified party (or after the indemnified party shall
have received notice of such service on any designated agent),
but failure to notify the indemnifying party of any such claim
shall not relieve it from any liability which it may otherwise
have to the indemnified party. The indemnifying party will 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 such liability, and if the indemnifying party elects
to assume the defense, such defense shall be conducted by
counsel chosen by it and reasonably satisfactory to the
indemnified party. In the event the indemnifying party elects
to assume the defense of any such suit and retain such counsel,
the indemnified party shall bear the fees and expenses of any
additional counsel retained by the indemnified party, provided
that the indemnified party shall have the right to employ one
separate counsel to represent it in such suit if in the
reasonable judgment of the indemnified party it is advisable
because of an actual or potential conflict of interest between
it and the indemnifying party in the conduct of the defense of
such action, in which event the fees and expenses of such
separate counsel will be borne by the indemnifying party.
6. Limitation of Liability. The names "Xxxxxx Insight
Fund Trust" and Trustees of "Xxxxxx Insight Fund Trust" 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 December 6, 1995 which is
hereby referred to and a copy of which is on file at the office
of the Secretary of State of the Commonwealth of Massachusetts
and at the principal office of the Trust. The obligations of
"Xxxxxx Insight Fund Trust Funds" entered into in the name or on
behalf thereof by any of the Trustees, officers representatives
or agents are not made individually, but in such capacities, and
are not binding upon any of the Trustees, shareholders,
officers, representatives or agents of the Trust personally, but
bind only the Trust property, and all persons dealing with any
class of shares of the Trust must look solely to the Trust
Property belonging to such class for the enforcement of any
claims against the Trust.
V. DURATION AND TERMINATION
This Agreement shall become effective as of the date first
above written, and, unless sooner terminated as provided herein,
shall continue until __________. Thereafter, if not terminated,
this Agreement shall continue automatically for successive terms
of one year, provided that such continuance is specifically
approved at least annually by a vote of the majority of those
members of the Board of Trustees of the Trust who are not
parties to this Agreement or "interested persons" of the Trust
and have no direct or indirect financial interest in the
operation of each Fund's Service Plan or in this Agreement, or
in any agreement relating to the Plan, by vote cast in person at
a meeting called for the purpose of voting on such approval;
provided, however, that this Agreement may be terminated by the
Trust at any time, without the payment of any penalty, by vote
of a majority of the entire Board of Trustees of the Trust or by
a vote of a "majority of the outstanding voting securities" of
the Trust on 60 days' written notice to Funds Distributor, or by
Funds Distributor at any time, without the payment of any
penalty, on 60 days' written notice to the Trust. This
Agreement will automatically and immediately terminate in the
event of its "assignment." (As used in this Agreement, the
terms "majority of the outstanding voting securities,"
"interested person" and "assignment" shall have the same
meanings as such terms have in the 1940 Act.)
VI. AMENDMENT OF THIS AGREEMENT
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.
VII. NOTICES
Notices of any kind to be given to the Trust hereunder by
Funds Distributor shall be in writing and shall be duly given if
mailed or delivered to the Trust at Xxx Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000; Attention: Xxxxxxxx X. Xxxxxxxx, or at
such other address or to such individual as shall be so
specified by the Trust to Funds Distributor. Notices of any
kind to be given to Funds Distributor hereunder by the Trust
shall be in writing and shall be duly given if mailed or
delivered to Funds Distributor at Xxx Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: General Counsel or at such
other address or to such individual as shall be so specified by
Funds Distributor to the Trust.
VIII. MISCELLANEOUS
The captions in 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. If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule
or otherwise, the remainder of this Agreement shall not be
affected thereby. Subject to the provisions of Section V
hereof, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective
successors and shall be governed by Massachusetts law; provided,
however, that nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation of the
SEC thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as
of the day and year first above written.
XXXXXX INSIGHT FUNDS TRUST
By:
Attest:
FUNDS DISTRIBUTOR, INC.
By:
Attest:
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xxxxxx/agree/dist/apr94TRVOCT95.DOC
