AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
This Agreement entered into as of this 14th day of December, 1999, by
and between Financial Investors Trust, a Delaware business trust having its
principal place of business at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000 (the "Trust") and ALPS Mutual Funds Services, Inc., a Colorado corporation
having its principal place of business at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 (the "Distributor").
WHEREAS, the Trust wishes to employ the services of the Distributor in
connection with the promotion and distribution of the Trust's shares of
beneficial interest of the U.S. Treasury Money Market Fund, U.S. Government
Money Market Fund and any other Funds offered by the Trust as listed on Schedule
A, attached hereto (the "Funds");
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants herein contained, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR
1.1 The Distributor will act as agent for the distribution of
shares in accordance with the instructions of the Trust's Board of Trustees
and registration statement and prospectuses then in effect with respect to
the Funds under the Securities Act of 1933, as amended, and will transmit
promptly any orders received by the Distributor for the purchase or
redemption of Shares either directly to the Trust's transfer agent for the
Fund involved or to any qualified broker/dealer for transmittal to said agent.
1.2(a) In consideration of these rights granted to the Distributor, the
Distributor agrees to use its best efforts, consistent with its other business,
to solicit orders for the sale of Shares. This shall not prevent the Distributor
from entering into like arrangements (including arrangements involving the
payment of underwriting commissions) with other issuers. The Distributor, at its
expense, shall finance appropriate activities which it deems reasonable which
are primarily intended to result in the sale of Shares, including but not
limited to, advertising, compensation of underwriters, dealers and sales
personnel, the printing and mailing of prospectuses to other than current
shareholders, and the printing and mailing of sales literature. In addition, the
Distributor will provide one or more persons, during normal business hours, to
respond to telephone questions with respect to the Funds.
1.2(b) All shares of the Funds offered for sale by the Distributor
shall be offered for sale to the public at a price per share (the "offering
price") equal to their net asset value (determined in the manner set forth in
the Trust's Declaration of Trust and then current prospectuses and/or Statements
of Additional Information), plus a sales charge (if any) described in the
Trust's current Prospectuses and/or Statements of Additional Information. The
Trust shall in all cases receive the net asset value per share on all shares. If
a sales charge is in effect, the Distributor shall have the right, subject to
such rules or regulations of the Securities and Exchange Commission as may then
be in effect pursuant to Section 22 of the Investment Company Act of
1940, as amended, (the "1940 Act") to pay a portion of the sales charge to
dealers who have sold shares of the Trust. If a fee in connection with
shareholder redemptions is in effect, the Trust shall collect the fee on
behalf of the Distributor and, unless otherwise agreed upon by the Trust and
the Distributor, the Distributor shall be entitled to receive all of such
fees. The offering price, if not an exact multiple of one cent, shall be
adjusted to the nearest cent.
1.2(c) This Agreement shall apply to unissued shares of the Trust,
shares of the Trust held in its treasury in the event that in the discretion of
the Trust, treasury shares shall be sold, and shares of the Trust repurchased
for resale.
1.3 The Distributor shall act as distributor of the shares in
compliance with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted pursuant to the Investment
Company Act of 1940, as amended, by the Securities and Exchange Commission or
any securities association registered under the Securities and Exchange Act of
1934, as amended. THE DISTRIBUTOR SHALL NOT MAKE OFFERS OF SALE OF SHARES IN ANY
STATE UNLESS THE DISTRIBUTOR HAS BEEN NOTIFIED BY THE TRUST THAT SUCH SHARES
HAVE BEEN REGISTERED UNDER THE SECURITIES LAWS OF SUCH STATE, OR THAT THERE IS
AN AVAILABLE EXEMPTION FROM REGISTRATION.
1.4 Whenever in their judgment such action is warranted by market,
economic or political conditions, or by circumstances of any kind, the Trust's
officers may decline to accept any orders for, or make any sales of, any shares
until such time as they deem it advisable to accept such orders and to make such
sales and the Trust shall advise you promptly of such determination.
1.5 Except as otherwise provided for in the Administrative Agreement
dated as of December 14, 1999, by and between the Trust and the Distributor (the
"Administration Agreement"),the Trust agrees to pay all costs and expenses in
connection with the registration of shares under the Securities Act of 1933, as
amended, and all expenses in connection with maintaining facilities for the
issue and transfer of shares and for supplying information, prices and other
data to be furnished by the Trust hereunder.
1.6 The Trust agrees to execute any and all documents and to furnish
any and all information and otherwise to take all actions which may be
reasonably necessary in the discretion of the Trust's officers in connection
with the qualification of shares for sale in such states as the Distributor may
designate to the Trust and the Trust may approve, and the Trust agrees to pay
all expenses which may be incurred in connection with such qualification. the
Distributor shall pay all expenses connected with its own qualification as a
broker under State or Federal laws and, except as otherwise specifically
provided in this agreement, all other expenses incurred by the Distributor in
connection with the sale of shares as contemplated in this agreement.
1.7 The Trust shall furnish the Distributor from time to time,
for use in connection with the sale of shares, such information with respect
to the Trust and the shares as the
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Distributor may reasonably request, and the Trust warrants that the
statements contained in any such information, when so signed by the Trust's
officers, shall be true and correct. Subject to the provisions of the
Administration Agreement the Trust also shall furnish the Distributor upon
request with: (a) annual audited reports of the Trust's books and accounts
with respect to each of the Funds, made by independent public accountants
regularly retained by the Trust, (b) semi-annual reports with respect to each
of the Funds prepared by the Trust, and (c) from time to time such additional
information regarding the Trust's financial condition as the Distributor may
reasonably request.
1.8 The Trust represents to the Distributor that all registration
statements and prospectuses filed by the Trust with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
shares have been prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder. As
used in this agreement the terms "registration statement" and "prospectus" shall
mean any registration statement and prospectus (together with the related
statement of additional information) filed with the Securities and Exchange
Commission with respect to any of the shares and any amendments and supplements
thereto which at any time shall have been filed with said Commission. The Trust
represents and warrants to the Distributor that any registration statement and
prospectus, when such registration statement becomes effective, will contain all
statements required to be stated therein in conformity with said Act and the
rules and regulations of said Commission; that all statements of fact contained
in any such registration statement and prospectus will be materially true and
correct when such registration statement becomes effective; and that neither any
registration statement nor any prospectus 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. 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. 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 into this agreement shall in any way limit the Trust's right
to file at any time such amendments to any registration statement and/or
supplements to any prospectus, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.9 The Trust authorizes the Distributor to use any prospectus in
the form furnished to the Distributor from time to time, in connection with
the sale of shares. The Trust agrees to indemnify, defend and hold the
Distributor, its several officers and directors, and any person who controls
the Distributor within the meaning of Section 15 of the Securities Act of
1933, as amended, (hereinafter referred to collectively as "indemnified
party") free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating
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or defending such claims, demands, or liabilities and any counsel fees in
connection therewith) which the Distributor, its officers and directors, or
any such controlling person, may incur under the Securities Act of 1933, as
amended, or under common law, or otherwise, arising out of or based upon any
untrue statement, or alleged untrue statement, of a material fact contained
in any registration statement or any prospectus or arising out of or based
upon any omission, or alleged omission, to state a material fact required to
be stated in either any registration statement or any prospectus or necessary
to make the statements in either thereof not misleading; provided, however,
that the Trust's agreement to indemnify the Distributor, its officers or
directors, and any such controlling person shall not be deemed to cover any
claims, demands, liabilities or expenses arising out of or based on any
omission, or alleged omission, made in any registration statement or
prospectus in reliance upon and in conformity with information furnished to
the Trust or its counsel by the Distributor and used in the preparation
thereof; and provided further that the Trust's agreement to indemnify the
Distributor and the Trust's representations and warranties herein set forth
shall not be deemed to cover any liability to the Trust or its shareholders
to which the Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in performance of its duties, or
by reason of its reckless disregard of its obligations and duties under this
agreement. The Trust's agreement to indemnify the Distributor, its officers
and directors, and any such controlling person, as aforesaid, is expressly
conditioned upon the Trust's being notified of any action brought against the
Distributor, its officers and directors, or any such controlling person, such
notification to be given by letter or by telegram addressed to the Trust at
its principal office within ten days after the summons or other first legal
process shall have been served. The failure to so 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 alleged untrue, statement or omission, or alleged omission,
otherwise than on account of the Trust's indemnity agreement contained in
this paragraph 1.9. 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. In the event the Trust elects to
assume the defense of any such suit and retain counsel of good standing
chosen by the Trust and approved by the Distributor, which approval shall not
be unreasonably withheld, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by the defense of
any such suit, or in case the Distributor does not reasonably approve of
counsel chosen by the Trust, the Trust will reimburse the Distributor, its
officers and directors, 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 1.9 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 and directors, and their respective estates, and to
the benefit of any 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 of the shares.
1.10 The Distributor agrees to indemnify, defend and hold the Trust,
its several officers and trustees, and any person who controls the Trust within
the meaning of Section 15 of the
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Securities Act of 1933, as amended, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands, liabilities, and any counsel
fees incurred in connection therewith) which the Trust, its officers or
trustees, or any such controlling person, may incur under the Securities Act
of 1933, as amended, or under common law or otherwise, but only to the extent
that such a liability or expense incurred by the Trust, its officers or
trustees, or such controlling person resulting from such claims or demands,
shall arise out of or be based upon any omission, or alleged omission, to
state a material fact in connection with such information furnished by the
Distributor to the Trust, or necessary to make such information not
misleading. the Distributor's agreement to indemnify the Trust, its officers
and trustees, or any such controlling person, such notification to be given
by letter or telegram addressed to the Distributor at its principal office
within ten days after the summons or other first legal process shall have
been served. The Distributor shall have the right to control the defense of
such action with counsel of its own choosing, satisfactory to the Trust, if
such action is based solely upon such alleged misstatement or omission on the
Distributor's part, and in any other event the Trust, its officers or
trustees or such controlling person shall each have the right to participate
in the defense or preparation of the defense of such action. The failure so
to notify the Distributor of any such action shall not relieve the
Distributor from any liability which the Distributor may have to the Trust,
its officers or trustees, or to such controlling person by reason of any such
untrue, or alleged untrue, statement of your omission, or alleged omission,
otherwise than on account of your indemnity agreement contained in this
paragraph 1.10.
1.11 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 such shares hereunder shall be accepted by the Trust if
and so long as the effectiveness of the registration statement then in effect
or any necessary amendments thereto shall be suspended under any of the
provisions of the Securities and Exchange Commission; provided, however, that
nothing contained in this paragraph 1.11 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase shares
from any shareholder in accordance with the provisions of the prospectuses or
Declaration of Trust.
1.12 The Distributor and the Trust each agree to advise the other
promptly in writing:
(a) of any request by the Securities and Exchange
Commission for amendments to the registration statement or
prospectuses then in effect;
(b) in the event of the issuance by the Securities and
Exchange Commission of any stop order suspending the
effectiveness of the registration statement or prospectuses
then in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event which makes untrue any
statement of a material fact made in the registration
statement or
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prospectuses in order to make the statements
therein not misleading; and
(d) of all the actions of the Securities and Exchange
Commission with respect to any registration statement or
prospectus which may from time to time be filed with the
Securities and Exchange Commission.
2. TERM
2.1 This agreement shall become effective as of the date hereof and,
unless sooner terminated, shall continue until December 14, 2000, and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Trust's Board
of Trustees or (ii) the vote of a majority (as defined in the Investment Company
Act of 1940) of the Funds' outstanding shares, provided that in either event its
continuance also is approved by a majority of the Trust's trustees who are not
"interested persons" (as defined in said Act) of any party to this agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. Notwithstanding anything to the contrary in this Agreement, you may
not terminate this Agreement prior to the later of: (i) the Administration
Agreement; or (ii) the effectiveness of any termination notice pursuant to the
Administration Agreement.
3. MISCELLANEOUS
3.1 OTHER WORK. The Trust recognizes that from time to time the
Distributor's directors, officers and employees may serve as directors, officers
and employees of other corporations or business trusts (including other
investment companies) and that such other corporations and trust may include the
name ALPS as part of their name, and that the Distributor or its affiliates may
enter into investment advisory or other agreements with such other corporations
and trusts.
3.2 LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. The names
"Financial Investors Trust" and "Trustees of Financial Investors Trust" 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 Feb. 23, 1994, which is hereby referred to and a copy of which is on
file at the office of the State Secretary of State of Delaware and the principal
office of the Trust. The obligations of "Financial Investors Trust" entered into
in the name of or on behalf thereof by any of its 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 Trust property belonging to such class for the
enforcement of any claims against the Trust.
3.3 AMENDMENTS. No substantive amendment of this Agreement shall be
effective as to the Trust until approved by vote of a majority of the
outstanding voting securities of the Trust.
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3.4 MODIFICATION. No provision of this agreement may be modified,
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which an enforcement of the change, waiver,
discharge or determination is sought.
3.5 GOVERNING LAW. This agreement shall be governed and
construed in accordance with the laws of the State of Colorado.
3.6 ASSIGNMENT. This agreement shall not be assigned by a party
without the prior written consent of the other party.
3.7 HEADINGS. The titles and headings herein have been inserted
for convenience only and are not to be considered when interpreting the
provisions of this Agreement.
3.8 WAIVER. The waiver by either party of a breach of any of the
covenants, provisions, or conditions herein contained shall not operate or be
construed as a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of the
date first above written.
FINANCIAL INVESTORS TRUST
By: ________________________
ALPS MUTUAL FUNDS SERVICES
By:_________________________
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FINANCIAL INVESTORS TRUST
DISTRIBUTION AGREEMENT DATED DECEMBER 14, 1999
SCHEDULE A
Aristata Equity Fund
Aristata Quality Bond Fund
Aristata Colorado Quality Tax-Exempt Bond Fund
Prime Money Market Fund
U.S. Treasury Money Market Fund
U.S. Government Money Market Fund
United Association 500 Index Fund
Interstate Fund
Magnet Total Market Growth Fund
FINANCIAL INVESTORS TRUST
By:______________________
ATTEST:
-------------------------
ALPS MUTUAL FUNDS SERVICES, INC.
By:_______________________
ATTEST:
---------------------------
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