Exhibit (e)
DISTRIBUTION AGREEMENT
This Distribution Agreement is made as of the 16th day of March, 2001
by and between Xxxxxx Insight(R) Funds Trust, a Massachusetts Business Trust
(the "Trust"), and PFPC DISTRIBUTORS, INC., a Delaware corporation ("PFPC" or
"Distributor").
WHEREAS, the Trust is an open-end management investment company and is
so registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust desires to retain PFPC as Distributor for the
Trust's separate portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (individually, a
"Fund" and collectively, the "Funds") in order to provide for the sale and
distribution of shares of the Funds (the "Shares"), and PFPC 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 PFPC 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 PFPC as
Distributor of the Funds' Shares and PFPC 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 PFPC to act as distributor hereunder,
the Trust shall notify PFPC in writing. If PFPC is willing to render such
services, it shall notify the Trust whereupon such portfolio shall become one of
the "Funds" hereunder and such portfolios shall be added to Exhibit A and
acknowledged in writing by the parties hereto.
2. Services and Duties.
(a) The Trust agrees to sell through PFPC, 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. PFPC 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 services, administration or distribution assistance for a Fund,
PFPC will enter into written agreements in a form satisfactory to the Trust's
Board of Trustees. PFPC 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, PFPC
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 Securities Act of 1933 (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) All Shares of the Funds and future funds covered by this Agreement
offered for sale by PFPC shall be offered for sale to the public at a price per
share (the "offering price") equal to (i) their net asset value (determined in
the manner set forth in the applicable Prospectuses), plus (ii) any sales charge
applicable to a class of Shares which shall be the percentage of the offering
price of such Shares as set forth in the applicable Prospectuses and, in respect
of Class B Shares, as set forth below. The offering price, if not an exact
multiple of one cent, shall be adjusted to the nearest cent. Concessions paid by
PFPC to broker-dealers and other persons shall be set forth in either the
selling agreements between PFPC 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 PFPC shall be authorized to act as
agent for the Trust in connection with the offering or sale of Shares to the
public or otherwise.
(d) If any Shares (other than Class B Shares) sold by PFPC under the
terms of this Agreement are redeemed or repurchased by the Trust or by PFPC as
agent or are tendered for redemption within seven business days after the date
of confirmation of the original purchase of said Shares, PFPC 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 PFPC to
broker-dealers or other persons shall be repayable to the Trust only to the
extent recovered by PFPC from the broker-dealer or other persons concerned. PFPC
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 PFPC as agent (or tendered for redemption) within
seven business days after the date of confirmation of such initial purchases.
(e) In accordance with the Distribution Plan-B Shares of the Trust (the
"Plan"), the Trust in respect of each Fund shall pay to the Distributor or, at
the Distributor's direction, to a third party, monthly in arrears on or prior to
the [10th] business day of the following calendar month, the Distributor's
Allocable Portion (as
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defined below) of a fee (the "Class B Distribution Fee") which shall accrue
daily in an amount equal to the product of (A) the daily equivalent of 0.75% per
annum multiplied by (B) the net asset value of the B Shares of each Fund
outstanding on such day. The Trust in respect of each Fund agrees to withhold
from redemption proceeds of the B Shares, the Distributor's Allocable Portion of
any contingent deferred sales charge ("CDSC") payable with respect to the B
Shares, as provided in each Fund's Prospectus, and to pay the same over to the
Distributor or, at the Distributor's direction, to a third party, at the time
the redemption proceeds are payable to the holder of such shares redeemed.
Payment of these CDSC amounts to the Distributor is not contingent upon the
adoption or continuation of any Plan.
For purposes of this Agreement, the term "Allocable Portion"
of the Class B Distribution Fee and CDSCs payable with respect to B Shares shall
mean the portion of such Distribution Fees and CDSC allocated to the Distributor
in accordance with the Allocation Schedule attached as Schedule A to the Plan.
The Distributor shall be considered to have completely earned
the right to the payment of its Allocable Portion of the Class B Distribution
Fee and the right to payment of its Allocable Portion of the CDSCs with respect
to each Class B Share upon the settlement date of each Class B Share taken into
account in determining the Distributor's Allocable Portion of Class B
Distribution Fees.
The provisions set forth in Section 2 of the Plan (in effect
on the date hereof) relating to B Shares, together with the related definitions
and Schedule A to the Plan are hereby incorporated by reference into this
Section II with the same force and effect as if set forth herein in their
entirety.
Service Plan Reports.
So long as the Trust has one or more service plans in effect for one or
more classes of shares (the "Service Plans"), the Distributor shall provide the
Trust's Board of Trustees at least quarterly, a written report of the amounts
expended by the Distributor pursuant to the Service Plans and the purpose for
which such expenditures were made.
3. 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 PFPC may designate to the Trust and the Trust may
approve, and the Trust shall pay all
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filing fees which may be incurred in connection with such qualification. PFPC
shall pay all other expenses incurred by PFPC 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
PFPC 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
PFPC'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 PFPC
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) PFPC may be exposed to
civil or criminal contempt proceedings for failure to divulge such information;
(ii) PFPC is requested to divulge such information by duly constituted
authorities; or (iii) PFPC is so requested by the Trust.
IV. INDEMNIFICATION
1. Trust Representation. The Trust represents and warrants to PFPC 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 PFPC expressly for use in the Registration Statement or Prospectuses.
2. PFPC Representation. PFPC represents and warrants to the Trust that
it is duly organized as a Delaware 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 PFPC, its several officers and Trustees and
any person who controls PFPC within the meaning of Section 15 of the 1933 Act,
from and against any
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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 PFPC, its several officers and Trustees, and any person who
controls PFPC 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 PFPC 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 Trustees 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. PFPC Indemnification. PFPC 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,
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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 PFPC specifically
for inclusion therein, and will reimburse 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, 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
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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 terminated as provided herein, shall continue until March
16, 2002. 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 PFPC, or by PFPC 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.). Notwithstanding this Section,
this Agreement, with respect to the Fund's Class B Shares, has been approved in
the manner required by the 1933 Act and the rules thereunder in anticipation of
the Distributor's transfer of its Allocable Portion of the Class B Distribution
Fee (but not its obligations under this Agreement) to a third party pursuant to
a "Purchase and Sale Agreement" in order to raise funds to cover distribution
expenditures in respect of the Class B Shares, and such transfer will not cause
a termination of this Agreement.
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 PFPC shall be
in writing and shall be duly given if mailed or delivered to the Trust at 0000
Xxxxxxx Xxxxx, Xxxx xx Xxxxxxx, XX 00000, or at such other address or to such
individual as shall be so specified by the Trust to PFPC. Notices of any kind to
be given to PFPC hereunder by the Trust shall be in writing and shall be duly
given if mailed or delivered to PFPC at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, XX
00000 or at such other address or to such individual as shall be so specified by
PFPC to the Trust.
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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 if 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 Delaware 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: ____________________
PFPC DISTRIBUTORS, INC.
By: ________________________________
Attest: ____________________
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EXHIBIT A
This Exhibit A, dated as of March 16, 2001, is Exhibit A to the
Distribution Agreement dated March 16, 2001 between Xxxxxx Insight Funds Trust
and PFPC Distributors, Inc.
XXXXXX INSIGHT FUNDS
Xxxxxx Insight Government Money Market Fund
Xxxxxx Insight Money Market Fund
Xxxxxx Insight Tax-Exempt Money Market Fund
Xxxxxx Insight Short/Intermediate Bond Fund
Xxxxxx Insight Bond Fund
Xxxxxx Insight Intermediate Government Bond Fund
Xxxxxx Insight Intermediate Tax-Exempt Bond Fund
Xxxxxx Insight Tax-Exempt Bond Fund
Xxxxxx Insight Convertible Securities Fund
Xxxxxx Insight Equity Fund
Xxxxxx Insight Large-Cap Aggressive Growth Fund
Xxxxxx Insight Small-Cap Aggressive Growth Fund
Xxxxxx Insight Technology Fund
Xxxxxx Insight Equity Income Fund
Xxxxxx Insight Growth Fund
Xxxxxx Insight Small-Cap Opportunity Fund
Xxxxxx Insight Small-Cap Value Fund
Xxxxxx Insight Index Fund
Xxxxxx Insight Balanced Fund
Xxxxxx Insight International Fund
Xxxxxx Insight Emerging Markets Fund
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