EXHIBIT m(1)
AMENDED PLAN AND AGREEMENT OF DISTRIBUTION PURSUANT TO RULE 12b-1
PLAN AND AGREEMENT made as of 30th day of September, 1997, by and between
INVESCO CAPITAL APPRECIATION FUNDS, INC., a Maryland corporation (hereinafter
called the "Company"), and INVESCO DISTRIBUTORS, Inc., a Delaware corporation
("INVESCO").
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, INVESCO 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 INVESCO 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 INVESCO 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 INVESCO to promote the distribution of shares of
the Company by providing services and engaging in activities
beyond those specifically required by the Distribution Agreement
between the Company and INVESCO and to provide related services.
The activities and services to be provided by INVESCO 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 may include INVESCO-affiliated
companies, that render distribution and administrative services
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) the 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) the providing
of such other services and activities as may from time to time be
agreed upon by the Company. Such reports and prospectuses, sales
literature, advertising and promotional activities and other
services and activities may be prepared and/or conducted either
by INVESCO's own staff, the staff of INVESCO-affiliated
companies, or third parties.
3. INVESCO 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 pay INVESCO to such extent, to enable
INVESCO at its discretion to engage over a rolling twelve-month
period (or the rolling twenty-four month period specified below)
in the activities and provide 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.
INVESCO shall not be entitled hereunder to payment for overhead
expenses (overhead expenses defined as customary overhead not
including the costs of INVESCO's personnel whose primary
responsibilities involve marketing of the INVESCO Funds).
Payments by the Company hereunder, for any month, may be used to
compensate INVESCO for: (a) activities engaged in and services
provided by INVESCO during the rolling twelve-month period in
which that month falls, or (b) to the extent permitted by
applicable law, for any month during the first twenty-four months
following the Company's commencement of operations, activities
engaged in and services provided by INVESCO during the rolling
twenty-four month period in which that month falls, and any
obligations incurred by INVESCO in excess of the limitation
described above shall not be paid for out of Fund assets. The
Company shall not be authorized to expend, for any month, a
greater percentage of its assets to pay INVESCO for activities
engaged in and services provided by INVESCO during the rolling
twenty-four month period referred to above than it would
otherwise be authorized to expend out of its assets to pay
INVESCO for activities engaged in and services provided by
INVESCO during the rolling twelve-month period referred to above,
and the Company shall not be authorized to expend, for any month,
a greater percentage of its assets to pay INVESCO for activities
engaged in and services provided by INVESCO pursuant to the Plan
and Agreement than it would otherwise have been authorized to
expend out of its assets to reimburse INVESCO for expenditures
incurred by INVESCO pursuant to the Plan and Agreement as it
existed prior to February 5, 1997. No payments will be made by
the Company hereunder after the date of termination of the Plan
and Agreement.
5. To the extent that obligations incurred by INVESCO 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 INVESCO shall provide to the board of directors
of the Company, at least quarterly, a written report of all
moneys spent by INVESCO on the activities and services specified
in paragraph (2) above pursuant to the Plan and Agreement. Each
such report shall itemize the activities engaged in and services
provided by INVESCO to a Fund as authorized by the penultimate
sentence of paragraph (4) above. Upon request, but no less
frequently than annually, INVESCO 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
since the predecessor Plan and Agreement had already been
approved by a vote of a majority of the outstanding voting
securities of the Company as defined in the Act, and shall
continue in effect until September 30, 1998 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.
INVESCO, 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 INVESCO nor
any affiliate of INVESCO serves the Company as investment
adviser, the agreement with INVESCO 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 a majority of the
outstanding voting securities 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 INVESCO pursuant to a plan, it
shall terminate automatically in the event of such "assignment."
Upon a termination of the agreement with INVESCO, 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 INVESCO, or the adoption of other
arrangements regarding the use of the amounts authorized to be
paid by the Funds 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 laws 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 30th day of September, 1997.
INVESCO CAPITAL APPRECIATION FUNDS, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx, President
ATTEST:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Secretary
INVESCO DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
Senior Vice President
ATTEST:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Secretary
