GENERAL DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this _____ day of __________, 1997 between INVESCO
DIVERSIFIED FUNDS, INC., a Maryland corporation (the "Fund"), and INVESCO
DISTRIBUTORS, INC., a Delaware corporation (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as a diversified, open-end management
investment company and currently has one class of shares (the "Shares") which is
divided into one series, and which may be divided into additional series (the
"Series"), each representing an interest in a separate portfolio of investments,
and it is in the interest of the Fund to offer the Shares for sale continuously;
and
WHEREAS, the Underwriter is engaged in the business of selling shares of
investment companies either directly to investors or through other securities
dealers; and
WHEREAS, the Fund and the Underwriter wish to enter into an agreement with
each other with respect to the continuous offering of the Shares of each Series
in order to promote growth of the Fund and facilitate the distribution of the
Shares;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints the Underwriter its agent for
the distribution of Shares of each Series in
jurisdictions wherein such Shares legally may be
offered for sale; provided, however, that the Fund in
its absolute discretion may (a) issue or sell Shares of
each Series directly to purchasers, or (b) issue or
sell Shares of a particular Series to the shareholders
of any other Series or to the shareholders of any other
investment company, for which the Underwriter or any
affiliate thereof shall act as exclusive distributor,
who wish to exchange all or a portion of their investment in Shares
of such Series or in shares of such other investment company for the
Shares of a particular Series. Notwithstanding any other provision
hereof, the Fund may terminate, suspend or withdraw the offering of
Shares whenever, in its sole discretion, it deems such action to be
desirable. The Fund reserves the right to reject any subscription in
whole or in part for any reason.
2. The Underwriter hereby agrees to serve as agent for the distribution
of the Shares and agrees that it will use its best efforts with
reasonable promptness to sell such part of the authorized Shares
remaining unissued as from time to time shall be effectively
registered under the Securities Act of 1933, as amended (the "1933
Act"), at such prices and on such terms as hereinafter set forth,
all subject to applicable federal and state securities laws and
regulations. Nothing herein shall be construed to prohibit the
Underwriter from engaging in other related or unrelated businesses.
3. In addition to serving as the Fund's agent in the
distribution of the Shares, the Underwriter shall also
provide to the holders of the Shares certain
maintenance, support or similar services ("Shareholder
Services"). Such services shall include, without
limitation, answering routine shareholder inquiries
regarding the Fund, assisting shareholders in
considering whether to change dividend options and
helping to effectuate such changes, arranging for bank
wires, and providing such other services as the Fund
may reasonably request from time to time. It is
expressly understood that the Underwriter or the Fund
may enter into one or more agreements with third
parties pursuant to which such third parties may
provide the Shareholder Services provided for in this
paragraph. Nothing herein shall be construed to impose
upon the Underwriter any duty or expense in connection
with the services of any registrar, transfer agent or
custodian appointed by the Fund, the computation of the
asset value or offering price of Shares, the
preparation and distribution of notices of meetings,
proxy soliciting material, annual and periodic reports,
dividends and dividend notices, or any other
responsibility of the Fund.
4. Except as otherwise specifically provided for in this
Agreement, the Underwriter shall sell the Shares
directly to purchasers, or through qualified broker-dealers or
others, in such manner, not inconsistent with the provisions hereof
and the then effective Registration Statement of the Fund under the
1933 Act (the "Registration Statement") and related Prospectus (the
"Prospectus") and Statement of Additional Information ("SAI") of the
Fund as the Underwriter may determine from time to time; provided
that no broker-dealer or other person shall be appointed or
authorized to act as agent of the Fund without the prior consent of
the directors (the "Directors") of the Fund. The Underwriter will
require each broker-dealer to conform to the provisions hereof and
of the Registration Statement (and related Prospectus and SAI) at
the time in effect under the 1933 Act with respect to the public
offering price of the Shares of any Series. The Fund will have no
obligation to pay any commissions or other remuneration to such
broker-dealers.
5. The Shares of each Series offered for sale or sold by
the Underwriter shall be offered or sold at the net
asset value per share determined in accordance with the
then current Prospectus and/or SAI relating to the sale
of the Shares of the appropriate Series except as
departure from such prices shall be permitted by the
then current Prospectus and/or SAI of the Fund, in
accordance with applicable rules and regulations of the
Securities and Exchange Commission. The price the Fund
shall receive for the Shares of each Series purchased
from the Fund shall be the net asset value per share of
such Share, determined in accordance with the
Prospectus and/or SAI applicable to the sale of the Shares of such
Series.
6. Except as may be otherwise agreed to by the Fund, the
Underwriter shall be responsible for issuing and
delivering such confirmations of sales made by it
pursuant to this Agreement as may be required; provided, however,
that the Underwriter or the Fund may utilize the services of other
persons or entities believed by it to be competent to perform such
functions. Shares shall be registered on the transfer books of the
Fund in such names and denominations as the Underwriter may specify.
7. The Fund will execute any and all documents and furnish
any and all information which may be reasonably
necessary in connection with the qualification of the
Shares for sale (including the qualification of the
Fund as a broker-dealer where necessary or advisable)
in such states as the Underwriter may reasonably
request (it being understood that the Fund shall not be
required without its consent to comply with any
requirement which in the opinion of the Directors of
the Fund is unduly burdensome). The Underwriter, at
its own expense, will effect all qualifications of
itself as broker or dealer, or otherwise, under all
applicable state or Federal laws required in order that
the Shares may be sold in such states or jurisdictions
as the Fund may reasonably request.
8. The Fund shall prepare and furnish to the Underwriter
from time to time the most recent form of the
Prospectus and/or SAI of the Fund and/or of each Series
of the Fund. The Fund authorizes the Underwriter to
use the Prospectus and/or SAI, in the forms furnished
to the Underwriter from time to time, in connection
with the sale of the Shares of the Fund and/or of each
Series of the Fund. The Fund will furnish to the
Underwriter from time to time such information with
respect to the Fund, each Series, and the Shares as the
Underwriter may reasonably request for use in
connection with the sale of the Shares. The Underwriter agrees that
it will not use or distribute or authorize the use, distribution or
dissemination by broker-dealers or others in connection with the
sale of the Shares any statements, other than those contained in a
current Prospectus and/or SAI of the Fund or applicable Series,
except such supplemental literature or advertising as shall be
lawful under Federal and state securities laws and regulations, and
that it will promptly furnish the Fund with copies of all such
material.
9. The Underwriter will not make, or authorize any broker-dealers or
others to make any short sales of the Shares of the Fund or
otherwise make any sales of the Shares unless such sales are made in
accordance with a then current Prospectus and/or SAI relating to the
sale of the applicable Shares.
10. The Underwriter, as agent of and for the account of the
Fund, may cause the redemption or repurchase of the
Shares at such prices and upon such terms and
conditions as shall be specified in a then current
Prospectus and/or SAI. In selling, redeeming or
repurchasing the Shares for the account of the Fund,
the Underwriter will in all respects conform to the
requirements of all state and federal laws and the
Rules of Fair Practice of the National Association of
Securities Dealers, Inc., relating to such sale,
redemption or repurchase, as the case may be. The
Underwriter will observe and be bound by all the
provisions of the Articles of Incorporation or Bylaws
of the Fund and of any provisions in the Registration
Statement, Prospectus and SAI, as such may be amended
or supplemented from time to time, notice of which
shall have been given to the Underwriter, which at the
time in any way require, limit, restrict or prohibit or
otherwise regulate any action on the part of the
Underwriter.
11. (a) The Fund shall indemnify, defend and hold harmless the
Underwriter, its officers and directors and any person who
controls the Underwriter within the meaning of the 1933 Act,
1933 Act, 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
attorney fees incurred in connection therewith) which the
Underwriter, its officers and directors or any such
controlling person, may incur under the federal securities
laws, the common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained
in the Registration Statement or any related Prospectus and/or
SAI or arising out of or based upon any alleged omission to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Notwithstanding the foregoing, this indemnity agreement, to
the extent that it might require indemnity of the Underwriter
or any person who is an officer, director or controlling
person of the Underwriter, shall not inure to the benefit of
the Underwriter or officer, director or controlling person
thereof unless a court of competent jurisdiction shall
determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy
as expressed in the federal securities laws and in no event
shall anything contained herein be so construed as to protect
the Underwriter against any liability to the Fund, the
Directors or the Fund's shareholders to which the Underwriter
would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties
or by reason of its reckless disregard of its obligations and
duties under this Agreement.
This indemnity agreement is expressly conditioned upon the
Fund's being notified of any action brought against the
Underwriter, its officers or directors or any such controlling
person, which notification shall be given by letter or by
telegram addressed to the Fund at its principal address in
Denver, Colorado and sent to the Fund by the person against
whom such action is brought within ten (10) days after the
summons or other first legal process shall have been served
upon the Underwriter, its officers or directors or any such
controlling person. The failure to notify the Fund of any such
action shall not relieve the Fund from any liability which it
may have to the person against whom such action is brought by
reason of any such alleged untrue statement or omission
otherwise than on account of the indemnity agreement contained
in this paragraph. The Fund shall be entitled to assume the
defense of any suit brought to enforce such claim, demand, or
liability, but in such case the defense shall be conducted by
counsel chosen by the Fund and approved by the Underwriter,
which approval shall not be unreasonably withheld. If the Fund
elects to assume the defense of any such suit and retain
counsel approved by the Underwriter, the defendant or
defendants in such suit shall bear the fees and expenses of an
additional counsel obtained by any of them. Should the Fund
elect not to assume the defense of any such suit, or should
the Underwriter not approve of counsel chosen by the Fund, the
Fund will reimburse the Underwriter, its officers and
directors or the controlling person or persons named as
defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by the Underwriter or
them. In addition, the Underwriter shall have the right to
employ counsel to represent it, its officers and directors and
any such controlling person who may be subject to liability
arising out of any claim in respect of which indemnity may
be sought by the Underwriter against the Fund hereunder if in
the reasonable judgment of the Underwriter it is advisable for
the Underwriter, its officers and directors or such
controlling person to be represented by separate counsel, in
which event the reasonable fees and expenses of such separate
counsel shall be borne by the Fund. This indemnity agreement
and the Fund's representations and warranties in this
Agreement shall remain operative and in full force and effect
and shall survive the delivery of any of the Shares as
provided in this Agreement. This indemnity agreement shall
inure exclusively to the benefit of the Underwriter and its
successors, the Underwriter's officers and directors and their
respective estates and any such controlling person and their
successors and estates. The Fund shall promptly notify the
Underwriter of the commencement of any litigation or
proceeding against it in connection with the issue and sale of
the Shares.
(b) The Underwriter agrees to indemnify, defend and
hold harmless the Fund, its Directors and any
person who controls the Fund within the meaning of
the 1933 Act, 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 attorney fees
incurred in connection therewith) which the Fund,
its Directors or any such controlling person may
incur under the Federal securities laws, the
common law or otherwise, but only to the extent
that such liability or expense incurred by the
Fund, its Directors or such controlling person
resulting from such claims or demands shall arise
out of or be based upon (a) any alleged untrue
statement of a material fact contained in
information furnished in writing by the
Underwriter to the Fund specifically for use in
the Registration Statement or any related
Prospectus and/or SAI or shall arise out of or be based upon
any alleged omission to state a material fact in connection
with such information required to be stated in the
Registration Statement or the related Prospectus and/or SAI or
necessary to make such information not misleading and (b) any
alleged act or omission on the Underwriter's part as the
Fund's agent that has not been expressly authorized by the
Fund in writing.
Notwithstanding the foregoing, this indemnity agreement, to
the extent that it might require indemnity of the Fund or any
Director or controlling person of the Fund, shall not inure to
the benefit of the Fund or Director or controlling person
thereof unless a court of competent jurisdiction shall
determine, or it shall have been determined by controlling
precedent, that such result would not be against public policy
as expressed in the federal securities laws and in no event
shall anything contained herein be so construed as to protect
any Director of the Fund against any liability to the Fund or
the Fund's shareholders to which the Director would otherwise
be subject by reason of willful misfeasance, bad faith or
gross negligence or reckless disregard of the duties involved
in the conduct of his office.
This indemnity agreement is expressly conditioned upon the
Underwriter's being notified of any action brought against the
Fund, its Directors or any such controlling person, which
notification shall be given by letter or telegram addressed to
the Underwriter at its principal office in Denver, Colorado,
and sent to the Underwriter by the person against whom such
action is brought, within ten (10) days after the summons or
other first legal process shall have been served upon the
Fund, its Directors or any such controlling person. The
failure to notify the Underwriter of any such action shall not
relieve the Underwriter from any liability which it may have
to the person against whom such action is brought by reason of
any such alleged untrue statement or omission otherwise than
on account of the indemnity agreement contained in this
paragraph. The Underwriter shall be entitled to assume the
defense of any suit brought to enforce such claim, demand, or
liability, but in such case the defense shall be conducted by
counsel chosen by the Underwriter and approved by the Fund,
which approval shall not be unreasonably withheld. If the
Underwriter elects to assume the defense of any such suit and
retain counsel approved by the Fund, the defendant or
defendants in such suit shall bear the fees and expenses of an
additional counsel obtained by any of them. Should the
Underwriter elect not to assume the defense of any such suit,
or should the Fund not approve of counsel chosen by the
Underwriter, the Underwriter will reimburse the Fund, its
Directors or the controlling person or persons named as
defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by the Fund or them. In
addition, the Fund shall have the right to employ counsel to
represent it, its Directors and any such controlling person
who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Fund against
the Underwriter hereunder if in the reasonable judgment of the
Fund it is advisable for the Fund, its Directors or such
controlling person to be represented by separate counsel, in
which event the reasonable fees and expenses of such separate
counsel shall be borne by the Underwriter. This indemnity
agreement and the Underwriter's representations and warranties
in this Agreement shall remain operative and in full force and
effect and shall survive the delivery of any of the Shares as
provided in this Agreement. This indemnity agreement shall
inure exclusively to the benefit of the Fund and its
successors, the Fund's Directors and their respective estates
and any such controlling person and their successors and
estates. The Underwriter shall promptly notify the Fund of the
commencement of any litigation or proceeding against it in
connection with the issue and sale of the Shares.
12. The Fund will pay or cause to be paid (a) expenses
(including the fees and disbursements of its own
counsel) of any registration of the Shares under the
1933 Act, as amended, (b) expenses incident to the
issuance of the Shares, and (c) expenses (including the
fees and disbursements of its own counsel) incurred in
connection with the preparation, printing and
distribution of the Fund's Prospectuses, SAIs, and
periodic and other reports sent to holders of the
Shares in their capacity as such. The Underwriter
shall prepare and provide necessary copies of all sales
literature subject to the Fund's approval thereof.
13. This Agreement shall become effective as of the date it
is approved by a majority vote of the Directors of the
Fund, as well as a majority vote of the Directors who
are not "interested persons" (as defined in the
Investment Company Act) of the Fund, and shall
continue in effect for an initial term expiring
February 28, 1998, and from year to year thereafter,
but only so long as such continuance is specifically
approved at least annually (a)(i) by a vote of the
Directors of the Fund or (ii) by a vote of a majority
of the outstanding voting securities of the Fund, and
(b) by a vote of a majority of the Directors of the
Fund who are not "interested persons," as defined in
the Investment Company Act, of the Fund cast in person
at a meeting for the purpose of voting on this
Agreement.
Either party hereto may terminate this Agreement on any date,
without the payment of a penalty, by giving the other party at least
60 days' prior written notice of such termination specifying the
date fixed therefor. In particular, this Agreement may be terminated
at any time, without payment of any penalty, by vote of a majority
of the members of the Directors of the Fund or by a vote of a
majority of the outstanding voting securities of the Fund on not
more than 60 days' written notice to the Underwriter.
Without prejudice to any other remedies of the Fund provided for in
this Agreement or otherwise, the Fund may terminate this Agreement
at any time immediately upon the Underwriter's failure to fulfill
any of the obligations of the Underwriter hereunder.
14. The Underwriter expressly agrees that, notwithstanding anything to
the contrary herein, or in any applicable law, it will look solely
to the assets of the Fund for any obligations of the Fund hereunder
and nothing herein shall be construed to create any personal
liability on the part of any Director or any shareholder of the
Fund.
15. This Agreement shall automatically terminate in the
event of its assignment. In interpreting the
provisions of this Section 15, the definition of
"assignment" contained in the Investment Company Act
shall be applied.
16. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate for the receipt of such
notice.
17. No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by
the Fund and the Underwriter and, if applicable, approved in the
manner required by the Investment Company Act.
18. Each provision of this Agreement is intended to be
severable. If any provision of this Agreement shall be
held illegal or made invalid by a court decision,
statute, rule or otherwise, such illegality or
invalidity shall not affect the validity or
enforceability of the remainder of this Agreement.
19. This Agreement and the application and interpretation
hereof shall be governed exclusively by the laws of the
State of Colorado.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this
Agreement to be executed on its behalf by an officer thereunto duly authorized
and the Underwriter has caused its corporate seal to be affixed as of the day
and year first above written.
INVESCO DIVERSIFIED FUNDS, INC.
ATTEST:
By:
---------------------------
Xxx X. Xxxxxx
----------------- President
Xxxx X. Xxxxx
Secretary
INVESCO DISTRIBUTORS, INC.
ATTEST:
By:
---------------------------
----------------- Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx Senior Vice President
Secretary
