DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 2nd day of May, 1994 between INVESCO SPECIALTY
FUNDS, INC., a Maryland corporation (the "Company"), and INVESCO FUNDS GROUP,
INC., a Delaware corporation (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Company 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 proposes to have one class of shares
(the "Shares") which is divided into two series, and which may be divided into
additional series (individually, the "Fund" and collectively, the "Funds"), each
representing an interest in a separate portfolio of investments, and it is in
the interest of the Company 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 Company and the Underwriter wish to enter into an agreement
with each other with respect to the continuous offering of the Shares of each
Fund in order to promote growth of the Company 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 Company hereby appoints the Underwriter its agent for the
distribution of Shares of each Fund in jurisdictions wherein such
Shares legally may be offered for sale; provided, however, that the
Company in its absolute discretion may (a) issue or sell Shares of
each Fund directly to purchasers, or (b) issue or sell Shares of a
particular Fund to the shareholders of any other Fund 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 Fund or in shares of such other
investment company for the Shares of a particular Fund.
Notwithstanding any other provision hereof, the Company may
terminate, suspend or withdraw the offering of Shares whenever, in
its sole discretion, it deems such action to be desirable. The
Company 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 Company'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
Company, 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 Company may
reasonably request from time to time. It is expressly understood
that the Underwriter or the Company 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 Company, 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 Company.
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 Company under the 1933 Act (the "Registration
Statement") and related Prospectus (the "Prospectus") and Statement
of Additional Information ("SAI") of the Company 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
Company without the prior consent of the directors (the "Directors")
of the Company. 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 Fund. The Company will have no obligation to pay any
commissions or other remuneration to such broker-dealers.
5. The Shares of each Fund 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 Fund except as
departure from such prices shall be permitted by the then current
Prospectus and/or SAI of the Company, in accordance with applicable
rules and regulations of the Securities and Exchange Commission.
The price the Company shall receive for the Shares of each Fund
purchased from the Company 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 Fund.
6. Except as may be otherwise agreed to by the Company, 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 Company 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 Company in such names and denominations as
the Underwriter may specify.
7. The Company 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 Company as a broker-dealer where necessary or
advisable) in such states as the Underwriter may reasonably request
(it being understood that the Company shall not be required without
its consent to comply with any requirement which in the opinion of
the Directors of the Company 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 Company may reasonably request.
8. The Company shall prepare and furnish to the Underwriter from time
to time the most recent form of the Prospectus and/or SAI of the
Company and/or of each Fund. The Company 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 Company and/or of each Fund. The Company will furnish
to the Underwriter from time to time such information with respect
to the Company, each Fund, 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
Company or applicable Fund, 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 Company
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 Company 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 Company, may
cause the redemption 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 or redeeming the Shares for the
account of the Company, 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 or redemption, 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 Company 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 Company 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,
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 Company, the
Directors or the Company'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
Company'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 Company at its principal address in
Denver, Colorado and sent to the Company 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 Company of any
such action shall not relieve the Company 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 Company 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 Company and approved by the
Underwriter, which approval shall not be unreasonably
withheld. If the Company 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 Company elect not to assume the defense of any such
suit, or should the Underwriter not approve of counsel chosen
by the Company, the Company 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 Company
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 Company. This
indemnity agreement and the Company'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
Company 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 Company, its Directors and any person who controls the
Company 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 Company, 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 Company, 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
Company 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
Company's agent that has not been expressly authorized by the
Company in writing.
Notwithstanding the foregoing, this indemnity agreement, to
the extent that it might require indemnity of the Company or
any Director or controlling person of the Company, shall not
inure to the benefit of the Company 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 Company against any liability to the
Company or the Company'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
Company, 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
Company, 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 Company,
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 Company, 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 Company not approve of counsel chosen by the
Underwriter, the Underwriter will reimburse the Company, 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 Company or them.
In addition, the Company 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 Company against the Underwriter hereunder if in the
reasonable judgment of the Company it is advisable for the
Company, 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 Company and its successors, the Company's
Directors and their respective estates and any such
controlling person and their successors and estates. The
Underwriter shall promptly notify the Company of the
commencement of any litigation or proceeding against it in
connection with the issue and sale of the Shares.
12. The Company 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 Company'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 Company's approval thereof.
13. This Agreement shall become effective as of May 2, 1994, and shall
continue in effect for an initial term expiring April 30, 1995, 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 Company or (ii) by a vote of a majority of the
outstanding voting securities of the Company, and (b) by a vote of
a majority of the Directors of the Company who are not "interested
persons," as defined in the Investment Company Act, of the Company
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 Company or by a vote of a
majority of the outstanding voting securities of the Company on not
more than 60 days' written notice to the Underwriter.
Without prejudice to any other remedies of the Company provided for
in this Agreement or otherwise, the Company 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 Company for any obligations of the Company
hereunder and nothing herein shall be construed to create any
personal liability on the part of any Director or any shareholder of
the Company.
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 Company 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 Company 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 SPECIALTY FUNDS, INC.
ATTEST:
By: /s/ Xxx X. Xxxxxx
/s/ Xxxx X. Xxxxx ------------------------
----------------- Xxx X. Xxxxxx
Xxxx X. Xxxxx President
Secretary
INVESCO FUNDS GROUP, INC.
ATTEST:
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
/s/ Xxxx X. Xxxxx Xxxxxx X. Xxxxxx
----------------- Senior Vice President
Xxxx X. Xxxxx
Secretary
