PLAN AND AGREEMENT OF DISTRIBUTION PURSUANT TO RULE 12b-1
PLAN AND AGREEMENT made as of the 16th day of April, 1990, by and between
Financial Industrial Fund, Inc., a Maryland corporation (hereinafter called the
"Company") and Financial Programs, Inc., a Delaware corporation ("Programs").
WHEREAS, the Company engages in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (the "Act"); and
WHEREAS, the Company desires to finance the distribution of its shares in
accordance with this Plan and Agreement of Distribution pursuant to Rule 12b-1
under the Act (the "Plan and Agreement"); and
WHEREAS, Programs desires to be retained to perform services in accordance
with such Plan and Agreement and on said terms and conditions; and
WHEREAS, this Plan and Agreement has been approved by a vote of the board
of directors of the Company, including a majority of the directors who are not
interested persons of the Company, as defined in the Act, and who have no direct
or indirect financial interest in the operation of this Plan and Agreement (the
"Disinterested Directors") cast in person at a meeting called for the purpose of
voting on this Plan and Agreement;
NOW, THEREFORE, the Company hereby adopts the Plan set forth herein and
the Company and Programs hereby enter into this Agreement pursuant to the Plan
in accordance with the requirements of Rule 12b-1 under the Act, and provide and
agree as follows:
1. The Plan is defined as those provisions of this document by which the
Company adopts a Plan pursuant to Rule 12b-1 under the Act and authorizes
payments as described herein. The Agreement is defined as those provisions of
this document by which the Company retains Programs to provide distribution
services beyond those required by the General Distribution Agreement between the
parties, as are described herein. The Company may retain the Plan
notwithstanding termination of the Agreement. Termination of the Plan will
automatically terminate the Agreement. The Company is hereby authorized to
utilize the assets of the Company to finance certain activities in connection
with distribution of the Company's shares.
2. Subject to the supervision of the board of directors, the Company hereby
retains Programs to promote the distribution of the Company's shares by
providing services and engaging in activities beyond those specifically required
by the Distribution Agreement between the Company and Programs and to provide
related services. The activities and services to be provided by Programs
hereunder shall include one or more of the following: (a) the payment of
compensation (including trail commissions and incentive compensation) to
securities dealers, financial institutions and other organizations which render
distribution and administrative service in connection with the distribution of
the Company's shares; (b) the printing and distribution of reports and
prospectuses for the use of potential investors in the Company; (c) preparing
and distributing of sales literature; (d) the providing of advertising and
engaging in other promotional activities, including direct mail solicitation,
and television, radio, newspaper and other media advertisements; and (e) such
other services and activities as may from time to time be agreed upon by the
Company.
3. Programs hereby undertakes to use its best efforts to promote sales of
shares of the Company to investors by engaging in those activities specified in
paragraph (2) above as may be necessary and as it from time to time believes
will best further sales of such shares.
4. The Company is hereby authorized to expend, out of its assets, on a
monthly basis, and shall reimburse Programs to such extent, for Programs' actual
direct expenditures incurred over a rolling twelve-month period in engaging in
the activities and providing the services specified in paragraph (2) above, an
amount computed at an annual rate of .25 of 1% of the average daily net assets
of the Company during the month. Programs shall not be entitled hereunder to
reimbursement for overhead expenses (overhead expenses defined as customary
overhead not including the costs of Programs' personnel whose primary
responsibilities involve marketing of the Financial Funds. Payments by the
Company hereunder, for any month, may be made only with respect to expenditures
incurred by Programs during the rolling twelve- month period in which that month
falls, and any expenditures incurred in excess of the limitation described above
are not reimbursable. No payments will be made by the Company hereunder after
the date of termination of the Plan and Agreement.
5. To the extent that expenditures made by Programs out of its own
resources to finance any activity primarily intended to result in the sale of
shares of the Company, pursuant to this Plan and Agreement or otherwise, may be
deemed to constitute the indirect use of Company assets, such indirect use of
Company assets is hereby authorized in addition to, and not in lieu of, any
other payments authorized under this Plan and Agreement.
6. The Treasurer of Programs shall provide and the board of directors of
the Company shall review, at least quarterly, a written report of all amounts
expended pursuant to the Plan and Agreement. Each such report shall itemize the
kinds of expenses incurred for which reimbursement is being made and the
purposes and the amounts of such expenses, and shall itemize the direct
expenditure of amounts by the Company as authorized by the penultimate sentence
of paragraph (4) above. Upon request, but no less frequently than annually,
Programs shall provide to the board of directors of the Company such information
as may reasonably be required for it to review the continuing appropriateness of
the Plan and Agreement.
7. This Plan and Agreement shall each become effective immediately upon
approval by a vote of a majority of the outstanding voting securities of the
Company as defined in the Act, and shall continue in effect for a period of one
year from the date of such approval unless terminated as provided below.
Thereafter, the Plan and Agreement shall continue in effect from year to year,
provided that the continuance of each is approved at least annually by a vote of
the board of directors of the Company, including a majority of the Disinterested
Directors, cast in person at a meeting called for the purpose of voting on such
continuance. The Plan may be terminated at any time, without penalty, by the
vote of a majority of the Disinterested Directors or by the vote of a majority
of the outstanding voting securities of the Company. Programs, or the Company,
by vote of a majority of the Disinterested Directors or of the holders of a
majority of the outstanding voting securities of the Company, may terminate the
Agreement under this Plan, without penalty, upon 30 days' written notice to the
other party. In the event that neither Programs nor any affiliate of Programs
serves the Company as investment adviser, the agreement with Programs pursuant
to this Plan shall terminate at such time. The board of directors may determine
to approve a continuance of the Plan, but not a continuance of the Agreement,
hereunder.
8. So long as the Plan remains in effect, the selection and nomination of
persons to serve as directors of the Company who are not "interested persons" of
the Company shall be committed to the discretion of the directors then in office
who are not "interested persons" of the Company. However, nothing contained
herein shall prevent the participation of other persons in the selection and
nomination process; provided that a final decision on any such selection or
nomination is within the discretion of, and approved by, a majority of the
directors of the Company then in office who are not "interested persons" of the
Company.
9. This Plan may not be amended to increase the amount to be spent by the
Company hereunder without approval of shareholders of the Company. All material
amendments to the Plan and to the Agreement must be approved by the vote of the
board of directors of the Company, including a majority of the Disinterested
Directors, cast in person at a meeting called for the purpose of voting on such
amendment.
10. To the extent that this Plan and Agreement constitutes a Plan of
Distribution adopted pursuant to Rule 12b-1 under the Act it shall remain in
effect as such, so as to authorize the use by the Company of its assets in the
amounts and for the purposes set forth herein, notwithstanding the occurrence of
an "assignment," as defined by the Act and the rules thereunder. To the extent
it constitutes an agreement with Programs pursuant to a plan, it shall terminate
automatically in the event of such "assignment." Upon a termination of the
agreement with Programs, the Company may continue to make payments pursuant to
the Plan only upon the approval of a new agreement under this Plan and
Agreement, which may or may not be with Programs, or the adoption of other
arrangements regarding the use of the amounts authorized to be paid by the
Company hereunder, by the Company's board of directors in accordance with the
procedures set forth in paragraph 7 above.
11. The Company shall preserve copies of this Plan and Agreement and all
reports made pursuant to paragraph 6 hereof, together with minutes of all board
of directors meetings at which the adoption, amendment or continuance of the
Plan were considered (describing the factors considered and the basis for
decision), for a period of not less than six years from the date of this Plan
and Agreement, or any such reports or minutes, as the case may be, the first two
years in an easily accessible place.
12. This Plan and Agreement shall be construed in accordance with the laws
of the State of Colorado and applicable provisions of the Act. To the extent the
applicable law of the State of Colorado, or any provisions herein, conflict with
the applicable provisions of the Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Plan and Agreement on the day and year first above written.
FINANCIAL INDUSTRIAL FUND, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, President
ATTEST: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Secretary
INVESCO FUNDS GROUP, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx,
Executive Vice President
ATTEST: /s/ Xxxx X. Xxxxx
------------------------
Xxxx X. Xxxxx, Secretary
