EXHIBIT 6
FORM OF
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this th day of
, 1996 by and between Insight Premier Funds (the "Trust")
and Insight Brokerage Services, Inc. (the "Distributor"), a
corporation organized under the laws of the Commonwealth of
Massachusetts, having its principal place of business at 00
Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Trust is registered as an open-end,
diversified management investment company under the
Investment Company Act of 1940 (the "1940 Act") and intends
to offer shares of beneficial interest (such shares of all
series are hereinafter called the "Shares"), representing
interests in investment portfolios of the Trust identified
on Schedule A hereto (the "Funds") which are registered with
the Securities and Exchange Commission ("SEC") pursuant to
the Trust's Registration Statement on Form N-1A (the
"Registration Statement"); and
WHEREAS, the Trust desires to retain the Distributor
as distributor for the Trust 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
Trust may issue, and the Distributor is prepared to provide
such services commencing on , 199 .
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 Trust for
the distribution of the Shares covered by the Registration
Statement under the Securities Act of 1933 (the "1933 Act").
The Distributor will have no liability for payment for the
purchase of Shares sold pursuant to this Agreement or with
respect to redemptions or repurchases of Shares.
1.2 The Distributor agrees to use efforts deemed
appropriate by the Distributor to solicit orders for the
sale of the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such
solicitation. The Trust understands that the Distributor
may in the future be the distributor of the shares of
several investment companies or series (collectively, the
"Companies") including Companies having investment
objectives similar to those of the Trust. The Trust further
understands that investors and potential investors in the
Trust may invest in shares of such other Companies. The
Trust agrees that the Distributor's duties to such Companies
shall not be deemed in conflict with its duties to the Trust
under this paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance
appropriate agreed upon activities which it deems reasonable
which are primarily intended to result in the sale of the
Shares, including, but not limited to, compensation of
underwriters, dealers and sales personnel and the printing
and mailing of prospectuses to other than current
shareholders.
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 SEC or the National
Association of Securities Dealers, Inc.
1.5 The Distributor will transmit any orders received by
it for purchase or redemption of the Shares to the transfer
agent for the Trust.
1.6 Whenever in their judgment such action is warranted by
unusual market, economic or political conditions, the
Distributor or the officers of the Trust may decline to
accept any orders for, or make any sales of, the Shares
until such time as the Distributor or those officers deem it
advisable to accept such orders and to make such sales.
1.7 The Trust 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.
1.8 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information
with respect to the Trust and the Shares as the Distributor
may reasonably request; and the Trust warrants that the
statements contained in any such information shall fairly
show or represent what they purport to show or represent.
1.9 The Trust represents to the Distributor that all
Registration Statements and prospectuses filed by the Trust
with the SEC 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 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 Trust filed with the SEC and any
amendments or supplements thereto at any time filed with
said Commission. The Trust 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 Trust 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 Trust's counsel, be
necessary or advisable. The Trust 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 Trust
shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt
by the Trust of a written request from the Distributor to do
so, the Distributor may, at its option, terminate this
Agreement. The Trust 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 Trust's right to file
at any time such amendments to any Registration Statements
and/or supplements to any prospectus, of whatever character,
as the Trust may deem advisable, such right being in all
respects absolute and unconditional.
1.10 The Trust authorizes the Distributor and dealers 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 Trust 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 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 legal fees incurred in connection
therewith) 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:
(a) any untrue statement, or alleged untrue statement, of
a material fact contained in the Trust's Registration
Statement, prospectus, statement of additional information,
or sales literature (including amendments and supplements
thereto), or
(b) any omission, or alleged omission, to state a material
fact required to be stated in the Trust'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 Trust by the
Distributor or its affiliated persons for use in the Trust's
Registration Statement, prospectus, or statement of
additional information or sales literature (including
amendments or supplements thereto), such indemnification is
not applicable.
The Distributor, its officers, directors, and
employees, and any such controlling person, as aforesaid,
shall notify the Trust of any action brought against the
Distributor, its officers, directors or employees, or any
such controlling person, such notification to be given by
letter or by telegram addressed to the Trust at its
principal office in Wellesley Hills, Massachusetts and sent
to the Trust 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 to notify
the Trust of any such action shall not relieve the Trust
from any liability which the Trust 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 the Trust's
indemnity agreement contained in this paragraph 1.10. The
Trust 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 the Trust and approved by the
Distributor, which approval shall not unreasonably be
withheld. In the event the Trust 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 the Trust 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 Trust, or in case there is a conflict of
interest between the Trust and the Distributor, the Trust
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 Trust's indemnification agreement contained in this
paragraph 1.10 and the Trust'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 Trust agrees
promptly to notify the Distributor of the commencement of
any litigation or proceedings against the Trust or any of
its officers or trustees in connection with the issue and
sale of any Shares.
1.11 The Distributor agrees to indemnify and hold harmless
the Trust, its several officers and trustees and each
person, if any, who controls a Fund within the meaning of
Section 15 of the 1933 Act against any loss, claims,
damages, liabilities and expenses (including the cost of any
reasonable legal fees incurred in connection therewith)
which the Trust, its officers, trustees 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 Trust,
its officers or trustees, 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 Trust's Registration
Statement, prospectus, statement of additional information
or sales literature (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 Trust by the
Distributor or its affiliated persons (as defined in the
1940 Act).
The Trust, its officers and trustees, and any such
controlling person, as aforesaid, shall notify the
Distributor of any action brought against the Trust, its
officers and trustees or any such controlling person, such
notification to be given by letter or by telegram addressed
to the Distributor at its principal office in Wellesley
Hills, Massachusetts and sent to 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. The failure to notify the Distributor of any
such action shall not relieve the Distributor from any
liability which the Distributor 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 the
Distributor's indemnity agreement contained in this
paragraph 1.11. The Distributor 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 the
Distributor and approved by the Trust, which approval shall
not unreasonably be withheld. In the event the Distributor
elects to assume the defense of any such suit and retain
counsel of good standing approved by the Trust, 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 the Distributor does not elect to assume the
defense of any such suit, or in case the Trust reasonably
does not approve of counsel chosen by the Distributor, or in
case there is a conflict of interest between the Trust and
the Distributor, the Distributor will reimburse the Trust,
its officers and trustees, 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 Trust
or them. The Distributor's indemnification agreement
contained in this paragraph 1.11 and the Distributor'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 Trust, its
officers and trustees, or any controlling person, and shall
survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to the Trust's benefit, to
the benefit of its several officers and trustees, and their
respective estates, and to the benefit of the controlling
persons and their successors. The Distributor agrees
promptly to notify the Trust of the commencement of any
litigation or proceedings against the Distributor or any of
its officers, directors or employees in connection with the
issue and sale of any Shares.
1.12 No Shares shall be offered by either the Distributor
or the Trust under any of the provisions of this Agreement
and no orders for the purchase or sale of Shares hereunder
shall be accepted by the Trust 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 said
Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph 1.12 shall in any way
restrict or have any application to or bearing upon the
Trust's obligation to repurchase Shares from any shareholder
in accordance with the provisions of the Trust's
Registration Statement, Declaration of Trust, or bylaws.
1.13 The Trust agrees to advise the Distributor as soon as
reasonably practical by a notice in writing delivered to the
Distributor:
(a) of any request by the SEC for amendments to the
Registration Statement, prospectus or statement of
additional information then in effect or for additional
information;
(b) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration
Statement, prospectus or statement of additional information
then in effect or the initiation by service of process on
the Trust 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, 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
(d) 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.
1.14 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 any officer of
that Fund. The Distributor shall enter into selling
agreements only with organizations that are either members
in good standing of the National Association of Securities
Dealers, Inc. or financial institutions that are not
required to be such members. All selling agreements shall
be in such form as is approved by the President of the Fund.
2. Term
This Agreement shall become effective on
, 199 and, unless sooner terminated as provided herein,
shall continue until June 30, 1998 and thereafter shall be
renewed for successive one-year terms, provided such
continuance is specifically approved at least annually by
(i) the Trust's Board of Trustees or (ii) by a vote of a
majority (as defined in the 0000 Xxx) of the outstanding
voting securities of the Trust, provided that in either
event the continuance is also approved by a majority of the
Trustees who are not parties to this Agreement and who are
not interested persons (as defined in the 0000 Xxx) of any
party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval. This
Agreement is terminable with respect to the Trust without
penalty, on at least sixty days' written notice, by the
Trust's Board of Trustees, by vote of a majority (as defined
in the 0000 Xxx) of the outstanding voting securities of the
Trust, or by the Distributor. This Agreement will also
terminate automatically in the event of its assignment (as
defined in the 1940 Act).
3. Limitation of Liability
The Distributor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the
Trust 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
gross negligence in the performance of such obligations and
duties, or by reason of its reckless disregard thereof. The
Trust will indemnify the Distributor against and hold it
harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees
and expenses) resulting from any claim, demand, action or
suit not resulting from the willful misfeasance, bad faith
or gross negligence of the Distributor in the performance of
such obligations and duties or by reason of its reckless
disregard thereof; provided, however, that as to any matter
disposed of by a compromise payment by the Distributor,
pursuant to a consent decree or otherwise, no
indemnification either for such payment or for any other
expenses shall be provided unless there has been a
determination that the Distributor did not engage in willful
misfeasance, bad faith or gross negligence or reckless
disregard of the performance of its obligations and duties
(i) by the court or other body approving the settlement or
other disposition; or (ii) based upon a review of readily
available facts (as opposed to a full trial-type inquiry),
by written opinion from independent legal counsel approved
by the Board of Trustees; or (iii) by a majority of the
Board of Trustees who are neither interested persons of the
Trust (as defined in the 0000 Xxx) nor parties to the
matter, based upon a review of readily available facts (as
opposed to a full trial-type inquiry).
4. Notices
All notices and other communications (collectively
referred to as a "Notice" or "Notices" in this paragraph)
hereunder shall be in writing or by telegram, cable, telex
or facsimile sending device. Notices shall be addressed (a)
if to the Distributor at its address, 00 Xxxxxxx Xxxxxx,
Xxxxx 000, X.X. Xxx 0000, Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx
00000; (b) if to the Trust, at its principal place of
business or (c) if to neither of the foregoing, at such
other address as to which the sender shall have been
notified by any such Notice or other communication. The
Notice may be sent by first-class mail, in which case it
shall be deemed to have been given three days after it is
sent, or if sent by telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given
immediately.
5. Further Actions
Each party agrees to perform such further acts and
execute such further documents as are necessary to
effectuate the purposes hereof.
6. Amendments
This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party
against which enforcement of such change or waiver is
sought.
7. Governing State Law
This Agreement shall be governed by and its provisions
shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
8. Matters Relating to the Trust as a Massachusetts
Business Trust
The names "Insight Premier Funds" and "Trustees of
Insight Premier Funds" 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 September 13, 1996 to which reference is
hereby made and a copy of which is on file at the office of
the Secretary of the Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of
"Insight Premier Funds" entered into in the name or on
behalf thereof by any of the Trustees, representatives or
agents are made not individually, but in such capacities,
and are not binding upon any of the Trustees, Shareholders
or representatives of the Trust personally, but bind only
the assets of the Trust, and all persons dealing with a Fund
must look solely to the assets of the Trust belonging to
such Fund for the enforcement of any claims against the
Trust. No Fund shall be responsible for the obligations of
any other Fund hereunder.
9. Miscellaneous
This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all
prior agreements and understandings relating to the subject
matter thereof. 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. This Agreement shall be
binding and shall inure to the benefit of the parties hereto
and their respective successors. This Agreement may be
executed in one or more counterparts, all of which taken
together shall be deemed one original.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed all as of the day and
year first above written.
INSIGHT PREMIER FUNDS
By:_________________________
Title:________________________
INSIGHT BROKERAGE SERVICES, INC.
By:_________________________
Title:________________________
SCHEDULE A
to the Distribution Agreement
between Insight Premier Funds and
Insight Brokerage Services, Inc.
Name of Series
Insight Growth Fund
Insight Moderate Growth Fund
Insight Conservative Allocation Fund
INSIGHT PREMIER FUNDS
By:_____________________________
Title:____________________________
INSIGHT BROKERAGE SERVICES, INC.
By:_______________________________
Title:______________________________
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