Exhibit (e)(2)
FORM OF DISTRIBUTION AGREEMENT
THIS AGREEMENT made as of this _____ day of _____, _____, by and
between Phoenix Insight Trusts Trust, a Massachusetts business trust (the
"Trust") and Phoenix Equity Planning Corporation, a Connecticut corporation (the
"Underwriter").
WITNESSETH THAT:
1. The Trust hereby grants to the Underwriter the right to purchase shares
of beneficial interest of each class of each series of the Trust established and
designated as of the date hereof and of any additional series and classes
thereof which the Board of Directors or Board of Trustees, as applicable
("Trustees") may establish and designate during the term of this Agreement
(called the "Series" and "Classes", respectively) and to resell shares of
various Classes, as applicable, of each Series (collectively called the
"Shares") as principal and not as agent. The Underwriter accepts such
appointment and agrees to render the services described in this Agreement for
the compensation herein provided.
2. The Underwriter's right to purchase Shares shall be exclusive except
that the terms of this Agreement shall not apply to Shares issued or
transferred:
a) pursuant to an offer of exchange exempted under Section 22(d)
of the Investment Company Act of 1940, as amended (the "Act")
by reason of the fact that said offer is permitted by Section
11 of the Act, including any offer made pursuant to clause (1)
or (2) of Section 11(b);
b) upon the sale to a registered unit investment trust which is
the issuer of periodic payment plan certificates the net
proceeds of which are invested in redeemable securities;
c) pursuant to an offer made solely to all registered holders of
Shares, or all registered holders of Shares of any Series,
proportionate to their holdings or proportionate to any cash
distribution made to them by the Trust (subject to appropriate
qualifications designed solely to avoid issuance of fractional
securities);
d) in connection with any merger or consolidation of the Trust or
of any Series with any other investment company or the
acquisition by the Trust, by purchase or otherwise, of any
other investment company;
e) pursuant to sales exempted from Section 22(d) of the Act, by
rule or regulation or order of the Securities and Exchange
Commission as provided in the then current registration
statement of the Trust; or
f) in connection with the reinvestment by Trust shareholders of
dividend and capital gains distributions.
3. The "Net Asset Value" and the "Public Offering Price" of the Shares as
referred to in this Agreement shall be computed in accordance with the
provisions of the then current registration statement and valuation procedures
of the Trust. The Underwriter shall be notified promptly by the Trust of such
computations.
4. The Underwriter has and shall enter into written sales agreements with
broker/dealers ("dealers") and with banks as defined in Section 3(a)(6) of the
Securities Exchange Act of 1934, as amended, ("Exchange Act") that are not
required to register as a broker/dealer under the Exchange Act or the
regulations thereunder ("Banks"). Such sales agreements shall provide that
dealers or Banks shall use their best efforts to promote the sale of Shares.
Such sales agreements shall include such terms and conditions as Underwriter may
determine not inconsistent with this Agreement; provided, however, that such
sales agreements shall specify a) that the dealer is registered as a
broker/dealer under the Exchange Act and a member of the National Association of
Securities Dealers, Inc. ("NASD") or, in the alternative, that the Bank is
exempt from broker/dealer registration under the Exchange Act; and b) that such
dealers and Banks agree that they will comply with all applicable state, and
federal laws and the rules and regulations of applicable regulatory agencies.
5. Each business day the Underwriter shall have the right to purchase from
the Trust, as principal, the amount of Shares needed to fill unconditional
orders for such Shares received by the Underwriter from dealers, Banks, or
investors, but no more than the Shares needed, at a price equal to the Net Asset
Value of the Shares. Any purchase of Shares by the Underwriter under this
Agreement shall be subject to reasonable adjustment for clerical errors, delays
and errors of transmission and cancellation of orders.
6. With respect to transactions other than with dealers or Banks, the
Underwriter will sell Shares only at the Public Offering Price then in effect,
except to the extent that sales at less than the Public Offering Price may be
allowed by the Act, any rule or regulation promulgated thereunder or by order of
the Securities and Exchange Commission, provided, however, that any such sales
at less than the Public Offering Price shall be consistent with the terms of the
then current registration statement of the Trust. The Underwriter will sell at
Net Asset Value Shares of any Classes which are offered by the then current
registration statement or prospectus of the Trust for sale at such Net Asset
Value or at Net Asset Value with a contingent deferred sales charge ("CDSC
Shares"). The Underwriter shall receive from the Trust all contingent deferred
sales charges applied on redemptions of CDSC Shares.
7. Sales at a discount from the Public Offering Price shall be made in
accordance with the terms and conditions of the terms of the current
registration statement of the Trust allowing such discounts. Such discounts
shall not exceed the difference between the Net Asset Value and the
Public Offering Price; however, the Underwriter may offer compensation in excess
of the difference between the Net Asset Value and the Public Offering Price, at
its discretion and from its own profits and resources, and only as described in
the current registration statement of the Trust. With respect to sales of CDSC
Shares, the Underwriter, in accordance with the terms of the current
registration statement of the Trust, shall pay dealers a commission on such
sales from its own profits and resources.
8. As reimbursement for expenditures made in connection with providing
certain distribution-related services, the Underwriter may receive from the
Trust a distribution service fee under the terms and conditions set forth in the
Trust's distribution plan adopted under Rule 12b-1 under the Investment Company
Act of 1940, as amended, as the plan may be amended from time to time and
subject to any further limitations on such fees as the Trustees may impose. The
Underwriter may receive from the Trust a service fee under the terms and
conditions set forth in the Trust's service plan to be retained by the
Underwriter as compensation for providing services to shareholders of the Trust
or to be paid to dealers and Banks for providing services to their clients who
are also shareholders of the Trust.
9. The Trust shall furnish the Underwriter with copies of its
organizational documents, as amended from time to time. The Trust shall also
furnish the Underwriter with any other documents of the Trust which will assist
the Underwriter in the performance of its duties hereunder.
10. The Underwriter agrees to use its best efforts (in states where it may
lawfully do so) to obtain from investors unconditional orders for Shares
authorized for issue by the Trust and registered under applicable Federal
securities laws, and, so long as it does so, nothing herein contained shall
prevent the Underwriter from entering into similar arrangements with other
registered investment companies. The Underwriter or the Trust may, in the
exercise of its discretion, refuse to accept orders for Shares from any person.
11. Upon receipt by the Trust of a purchase order from the Underwriter,
accompanied by proper delivery instructions, the Trust shall, as promptly as
practicable thereafter, cause evidence of ownership of Shares to be delivered as
indicated in such purchase order. Payment for such Shares shall be made by the
Underwriter to the Trust in a manner acceptable to the Trust, provided that the
Underwriter shall pay for such Shares no later than the third business day after
the Underwriter shall have contracted to purchase such shares.
12. In connection with offering for sale and selling Shares, the Trust
authorizes the Underwriter to give only such information and to make only such
statements or representations as are contained in the then current registration
statement of the Trust. The Underwriter shall be responsible for the approval
and filing of sales material as required under the Securities and Exchange
Commission ("SEC") and NASD regulations.
13. In performing its services pursuant to this Agreement, the Underwriter
shall comply with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted by the SEC or by any
securities association registered under the Exchange Act, and the securities
laws of those states in which Shares are sold and all applicable rules and
regulations thereunder, and the regulations of the National Association of
Securities Dealers, Inc.
14. The Underwriter shall prepare and deliver reports to the Trustees of
the Trust on a regular, at least quarterly basis, showing the expenses incurred
pursuant to this Agreement and pursuant to the 12b-1 Plan, and the purposes
therefor, as well as any supplemental reports the Trustees from time to time may
reasonably request. The Underwriter also agrees to furnish such information as
is reasonably necessary to assist the Trustees in evaluating the distribution
plan affecting any Class, or any proposed amendment thereto.
15. The Trust agrees to pay the following expenses:
a) the cost of mailing share certificates, if any, representing
Shares;
b) fees and expenses (including legal expenses) of registering
and maintaining registrations of the Trust and of each Series
and Class with the Securities and Exchange Commission
including the preparation and printing of registration
statements and prospectuses for filing with said Commission;
c) fees and expenses (including legal expenses) incurred in
registering and qualifying Shares for sale with any state
regulatory agency and fees and expenses of maintaining,
renewing, increasing or amending such registrations and
qualifications;
d) the expense of any issue or transfer taxes upon the sale of
Shares to the Underwriter by the Trust;
e) the cost of preparing and distributing reports and notices to
shareholders; and
f) fees and expenses of the transfer agent, including the cost of
preparing and mailing notices to shareholders pertaining to
transactions with respect to such shareholders accounts.
16. The Underwriter agrees to pay the following expenses:
a) all expenses of printing prospectuses, statements of
additional information and shareholder reports used in
connection with the offering or sale of Shares and printing
and preparing all other sales literature;
b) all fees and expenses in connection with the qualification of
the Underwriter as a dealer in the various states and
countries;
c) the expense of any stock transfer tax required in connection
with the sale of Shares by the Underwriter as principal to
dealers or to investors; and
d) all other expenses in connection with offering for sale and
the sale of Shares which have not been herein specifically
allocated to the Trust.
17. The Trust hereby appoints the Underwriter its agent to receive requests
to accept the Trust's offer to repurchase Shares upon such terms and conditions
as may be described in the Trust's then current registration statement. The
agency granted in this paragraph 17 is terminable at the discretion of the
Trust. As compensation for acting as such agent and as part of the consideration
for acting as underwriter, Underwriter shall receive from the Trust all
contingent deferred sales charges, but not other redemption fees, imposed upon
the redemption of Shares. Whether and to what extent a contingent deferred sales
charge will be imposed shall be determined in accordance with, and in the manner
set forth in, the Trust's prospectus.
18. The Trust agrees to indemnify and hold harmless the Underwriter, its
officers and directors and each person, if any, who controls the Underwriter
within the meaning of section 15 of the Securities Act of 1933, as amended,
against any losses, claims, damages, liabilities and expenses (including the
cost of any legal fees incurred in connection therewith) which the Underwriter,
its officers, directors or any such controlling person may incur under said 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 or
prospectus (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 or
prospectus or necessary to make the statements in either 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 and in conformity with
information furnished to the Trust by the Underwriter for use
in the Trust's registration statement or prospectus, such
indemnification is not applicable. In no case shall the Trust
indemnify the Underwriter or its controlling persons as to any
amounts incurred for any liability arising out of or based
upon any action for which the Underwriter, its officers and
directors or any controlling person would otherwise be subject
to liability by reason of willful misfeasance, bad faith, or
gross negligence in the performance of its duties or by reason
of the reckless disregard of its obligations and duties under
this Agreement.
19. The Underwriter agrees to indemnify and hold harmless the Trust, its
officers and trustees and each person, if any, who controls the Trust within the
meaning of Section 15 of the Securities Act of 1933, as amended, against any
losses, claims, damages, liabilities and expenses (including the cost of any
legal fees incurred in connection therewith) which the Trust, its officers,
trustees or any such controlling person may incur under said Act, under any
other statute, at common law or otherwise arising out of the acquisition of any
shares by any person which
a) may be based upon any wrongful act by the Underwriter or any
of its employees or representatives, or
b) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in the Trust's
registration statement, prospectus (including amendments and
supplements thereto) or sales material, 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 Underwriter.
20. It is understood that:
a) trustees, officers, employees, agents and shareholders of the
Trust are or may be interested persons, as that term is
defined in the Act ("Interested Persons"), of the Underwriter
as directors, officers, stockholders or otherwise;
b) directors, officers, employees, agents and stockholders of the
Underwriter are or may be Interested Persons of the Trust as
trustees, officers, shareholders or otherwise;
c) the Underwriter may be an Interested Person of the Trust as
shareholder or otherwise; and
d) the existence of any such dual interest shall not offset the
validity hereof or of any transactions hereunder.
21. The Trust may terminate this Agreement by 60 days written notice to the
Underwriter at any time, without the payment of any penalty, by vote of the
Trustees or by a vote of a majority of the outstanding voting securities, as
that term is defined in the Act, of the Trust. The Underwriter may terminate
this Agreement by 60 days written notice to the Trust, without the payment of
any penalty. This Agreement shall immediately terminate in the event of its
assignment, as that term is defined in the Act.
22. Subject to prior termination as provided in paragraph 21, this
Agreement shall continue in force for one year from the date of execution and
from year to year thereafter so long as the continuance after such one year
period shall be specifically approved at least annually by vote of the Trustees,
or by a vote of a majority of the appropriate class of outstanding voting
securities, as that term is defined in the Act, of the Trust. Additionally, each
annual renewal of this Agreement must be approved by the vote of a majority of
the Trustees who are not parties to the Agreement or Interested Persons of any
such party, cast in person at a meeting of the Trustees called for the purpose
of voting on such approval.
23. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but bind only the trust property of
the Trust, as provided in the Amended and Restated Declaration of Trust, as
amended. The execution and delivery of this Agreement by the President of the
Trust has been authorized by the Trustees acting as such, and neither such
execution and delivery by such officer nor such authorization by such Trustees
shall be deemed
to have been made by any of them individually or be binding upon or impose any
liability on any of them personally, but shall bind only the trust property of
the Trust as provided in the Amended and Restated Declaration of Trust, as
amended. The Amended and Restated Declaration of Trust, as amended is on file
with the Secretary of the Commonwealth of Massachusetts.
24. The Underwriter warrants that (a) it has adopted an anti-money
laundering compliance program ("AML Program") that satisfies the requirements of
all applicable laws and regulations and (b) it will notify the Trust promptly if
an inspection by regulatory authorities of its AML Program identifies any
material deficiency and will promptly notify the Trust of any material
deficiency known to it.
25. Any notice or other communication required to be given pursuant to this
Agreement shall be deemed duly given if delivered personally or by overnight
delivery service or mailed by certified or registered mail, return receipt
requested and postage prepaid, or sent by facsimile addressed to the parties at
their respective addresses set forth below, or at such other address as shall be
designated by any party in a written notice to the other party.
(a) To [Phoenix Insight Funds Trust] at:
[Address]
Attn:
Telephone:
Facsimile:
Email:
(b) To Phoenix Equity Planning Corporation at:
[Address]
Attn:
Telephone:
Facsimile:
Email:
26. This Agreement shall become effective upon the date first set forth
above. This Agreement shall be governed by the laws of the State of Connecticut
and shall be binding on the successors and assigns of the parties to the extent
permitted by law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
PHOENIX INSIGHT FUNDS TRUST
By:
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Name:
----------------------
Title:
PHOENIX EQUITY PLANNING
CORPORATION
By:
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Name:
Title:
