EXHIBIT 6(A)
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of this 23rd day of February,
1996 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
February 23, 1997. 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 "assigmuent. " (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: /s/ Xxxxxxxx X. Xxxxxxxx
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Attest:
FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Attest:
