Exhibit 6
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 15th day of November, 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 November 15, 1996.
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 November 15, 1996 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:/s/ Xxxx Xxxxx
Title:Vice President and Secretary
INSIGHT BROKERAGE SERVICES, INC.
By:/s/ Xxxx X. Xxxxxx
Title:President
Page 151
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
