DISTRIBUTION AGREEMENT
AGREEMENT dated as of , 2002, between
___________________(the "Trust"), an open-end, management
investment company organized as a ___________under the laws of
the State of _____________________, having its principal place of
business at ____________________ and ALPS Distributors, Inc., a
Colorado corporation and a registered broker-dealer under the
Securities Exchange Act of 1934, having its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Distributor").
WHEREAS, the Trust wishes to employ the services of the
Distributor in connection with the promotion and distribution of
the shares of the__________________ Fund (the "Shares"); and
NOW, THEREFORE, in consideration of the mutual promises
and undertakings herein contained, the parties agree as follows:
1. Documents -- The Trust has furnished or will furnish, upon
request, the Distributor with copies of the Trust's Declaration
of Trust, advisory agreement, custodian agreement, transfer
agency agreement, administration agreement, current prospectus,
and statement of additional information, and all forms relating
to any plan, program or service offered by the Trust. The Trust
shall furnish, within a reasonable time period, to the
Distributor a copy of any amendment or supplement to any of the
above-mentioned documents. Upon request, the Trust shall furnish
promptly to the Distributor any additional documents necessary or
advisable to perform its functions hereunder. As used in this
Agreement the terms "registration statement", "prospectus" and
"statement of additional information" shall mean any registration
statement, prospectus and statement of additional information
filed by the Trust with the Securities and Exchange Commission
("SEC") and any amendments and supplements thereto that are filed
with the SEC.
2. Sales of Shares -- The Trust grants to the Distributor the
right to sell the Shares as agent on behalf of the Trust, during
the term of this Agreement, subject to the registration
requirements of the Securities Act of 1933, as amended (the "1933
Act"), the Investment Company Act of 1940, as amended (the "1940
Act") and of the laws governing the sale of securities in the
various states ("Blue Sky Laws"), under the terms and conditions
set forth in this Agreement. The Distributor shall have the right
to sell, as agent on behalf of the Trust, the Shares covered by
the registration statement, prospectus and statement of
additional information for the Trust then in effect under the
1933 Act and 1940 Act.
3. Sales of Shares by the Trust-- The rights granted to the
Distributor shall be nonexclusive in that the Trust reserves the
right to sell Shares to investors on applications received and
accepted by the Trust.
4. Public Offering Price - Except as otherwise noted in the
Trust's current prospectus and/or statement of additional
information, all Shares sold to investors by the Distributor or
the Trust will be sold at the public offering price. The public
offering price for all accepted subscriptions will be the net
asset value per Share, as determined in the manner described in
the Trust's current prospectus and/or statement of additional
information, plus a sales charge (if any) as described in the
Trust's current prospectus and/or statement of additional
information. The Trust shall in all cases receive the net asset
value per Share on all sales. If a sales charge is in effect, the
Distributor shall have the right, subject to such rules or
regulations of the SEC as may then be in effect pursuant to
Section 22 of 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.
5. Suspension of Sales -- The Trust reserves the right to
suspend sales and the Distributor's authority to process orders
for Shares on behalf of the Trust if, in the judgment of the
Trust, it is in the best interests of the Trust to do so.
Suspension will continue for such period as may be determined by
the Trust.
6. Solicitation of Sales -- In consideration of these rights
granted to the Distributor, the Distributor agrees to use its
best efforts to solicit orders for the sale of the Shares at the
public offering price and will undertake such advertising and
promotion as it believes is reasonable in connection with such
solicitation. The Distributor shall review and file such
materials with the SEC and/or the National Association of
Securities Dealers, Inc. (the "NASD") to the extent required by
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the 1940 Act and the rules and regulations thereunder,
and by the rules of the NASD. This shall not prevent the
Distributor from entering into like arrangements (including
arrangements involving the payment of underwriting commissions)
with other issuers. The Distributor will act only on its own
behalf as principal should it choose to enter into selling
agreements with selected dealers or others.
7. Authorized Representations -- The Distributor is not
authorized by the Trust to give any information or to make any
representations other than those contained in the registration
statement or prospectus and statement of additional information,
or contained in shareholder reports or other material that may be
prepared by or on behalf of the Trust for the Distributor's use.
Consistent with the foregoing, the Distributor may prepare and
distribute sales literature or other material as it may deem
appropriate in consultation with the Trust, provided such sales
literature complies with applicable law and regulations.
8. Registration of Shares -- The Trust agrees that it will take
all action necessary to register the Shares under the 1933 Act
and the 1940 Act (subject to the necessary approval of its
shareholders). The Trust shall make available to the Distributor,
at the Distributor's expense, such number of copies of its
prospectus and statement of additional information as the
Distributor may reasonably request. The Trust shall furnish to
the Distributor copies of all information, financial statements
and other papers, which the Distributor may reasonably request
for use in connection with the distribution of Shares of the
Trust.
9. Fund Expenses -- Unless otherwise agreed to by the parties
hereto in writing, the Distributor shall not be responsible for
fees and expenses in connection with (a) filing of any
registration statement, printing and the distribution of any
prospectus and statement of additional information under the 1933
Act and/or the 1940 Act and amendments prepared for use in
connection with the offering of Shares for sale to the public,
preparing, setting in type, printing and mailing the prospectus,
statement of additional information and any supplements thereto
sent to existing shareholders, (b) preparing, setting in type,
printing and mailing any report (including annual and semi-annual
reports) or other communication to shareholders of the Trust, and
(c) the Blue Sky registration and qualification of Shares for
sale in the various states in which the officers of the Trust
shall determine it advisable to qualify such Shares for sale
(including registering the Trust as a broker or dealer or any
officer of the Trust as agent or salesman in any state).
11. Use of the Distributor's Name -- The Trust shall not use the
name of the Distributor, or any of its affiliates, in any
prospectus or statement of additional information, sales
literature, and other material relating to the Fund in any manner
without the prior written consent of the Distributor (which shall
not be unreasonably withheld); provided, however, that the
Distributor hereby approves all lawful uses of the names of the
Distributor and its affiliates in the prospectus and statement of
additional information of the Fund and in all other materials
which merely refer to accurate terms to their appointment
hereunder or which are required by the SEC, NASD, OCC or any
state securities authority.
12. Use of the Trust's Name -- Neither the Distributor nor any
of its affiliates shall use the name of the Trust in any publicly
disseminated materials, including sales literature in any manner
without the prior consent of the Trust (which shall not be
unreasonably withheld); provided, however, that the Trust hereby
approves all lawful uses of its name in any required regulatory
filings of the Distributor which merely refer in accurate terms
to the appointment of the Distributor hereunder, or which are
required by the SEC, NASD, OCC or any state securities authority.
13. Insurance -- The Distributor agrees to maintain fidelity
bond and liability insurance coverages which are, in scope and
amount, consistent with coverages customary for distribution
activities relating to the Trust. The Distributor shall notify
the Trust upon receipt of any notice of material, adverse change
in the terms or provisions of its insurance coverage. Such
notification shall include the date of change and the reason or
reasons therefor. The Distributor shall notify the Trust of any
material claims against it, whether or not covered by insurance,
and shall notify the Trust from time to time as may be
appropriate of the total outstanding claims made by it under its
insurance coverage.
14. Indemnification -- The Trust agrees to indemnify and hold
harmless the Distributor and each of its directors and officers
and each person, if any, who controls the Distributor within the
meaning of Section 15 of the 1933 Act, against any loss,
liability, claim, damages or expenses (including the reasonable
cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in
connection therewith) arising by reason of any person acquiring
any Shares, based upon the ground that the registration
statement, prospectus, statement of additional information,
shareholder reports or other information filed or made public by
the Trust (as from time to time amended) included an untrue
statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the
statements not misleading under the 1933 Act, the 1940 Act or any
other statute or the common law. However, the Trust does not
agree to indemnify the Distributor or hold it harmless to the
extent that the statement or omission was made in reliance upon,
and in conformity with, information furnished to the Trust by or
on behalf of the Distributor. In no case (i) is the indemnity of
the Trust in favor of the Distributor or any person indemnified
to be deemed to protect the Distributor or any person against any
liability to the Trust or its security holders to which the
Distributor or such person would otherwise be subject by reason
of willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of its reckless disregard
of its obligations and duties under this Agreement, or (ii) is
the Trust to be liable under its indemnity agreement contained in
the paragraph with respect to any claim made against the
Distributor or any person indemnified unless the Distributor or
person, as the case may be, shall have notified the Trust in
writing of the claim promptly after the summons or other first
written notification giving information of the nature of the
claims shall have been served upon the Distributor or any such
person (or after the Distributor or such person shall have
received notice of service on any designated agent). However,
failure to notify the Trust of any claim shall not relieve the
Trust from any liability which it may have to any person against
whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Trust shall
be entitled to participate at its own expense in the defense, or,
if it so elects, to assume the defense of any suit brought to
enforce any claims, and if the Trust elects to assume the
defense, the defense shall be conducted by counsel chosen by the
Trust. In the event the Trust elects to assume the defense of any
suit and retain counsel, the Distributor, officers or directors
or controlling person(s), defendant(s) in the suit, shall bear
the fees and expenses of any additional counsel retained by them.
If the Trust does not elect to assume the defense of any suit, it
will reimburse the Distributor, officers or directors or
controlling person(s) or defendant(s) in the suit for the
reasonable fees and expenses of any counsel retained by them. The
Trust agrees to notify the Distributor promptly of the
commencement of any litigation or proceeding against it or any of
its officers in connection with the issuance or sale of any of
the Shares.
The Distributor also covenants and agrees that it will indemnify
and hold harmless the Trust and each of its officers and person,
if any, who controls the Trust within the meaning of Section 15
of the 1933 Act, against any loss, liability, damages, claims or
expense (including the reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or expense
and reasonable counsel fees incurred in connection therewith)
arising by reason of any person acquiring any Shares, based upon
the 1933 Act, the 1940 Act or any other statute or common law,
alleging (a) any wrongful act of the Distributor or any of its
employees or (b) that any sales literature, advertisements,
information, statements or representations used or made by the
Distributor or any of its affiliates or employees or that the
registration statement, prospectus, statement of additional
information, (as from time to time amended) included an untrue
statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the
statements not misleading, insofar as the statement or omission
was made in reliance upon, and in conformity with, information
furnished to the Trust by or on behalf of the Distributor. In no
case (i) is the indemnity of the Distributor in favor of the
Trust or any person indemnified to be deemed to protect the Trust
or any person against any liability to which the Trust or such
person would otherwise be subject by reason of willful
misfeasance, bad faith or negligence in the performance of its
duties or by reason of its reckless disregard of its obligations
and duties under this Agreement, or (ii) is the Distributor to be
liable under its indemnity agreement contained in this paragraph
with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall
have notified the Distributor in writing of the claim promptly
after the summons or other first written notification giving
information of the nature of the claim shall have been served
upon the Trust or any such person (or after the Trust or such
person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim
shall not relieve the Distributor from any liability which it may
have to the Fund or any person against whom the action is brought
otherwise than on account of its indemnity agreement contained in
this paragraph. In the case of any notice to the Distributor it
shall be entitled to participate, at its own expense, in the
defense or, if it so elects, to assume the defense of any suit
brought to enforce the claim, and if the Distributor elects to
assume the defense, the defense shall be consulted by counsel
chosen by it and satisfactory to the Trust, to its officers and
to any controlling person(s) or defendant(s) in the suit. In the
event that the Distributor elects to assume the defense of any
suit and retain counsel, the Trust or controlling person(s),
defendant(s) in the suit, shall bear the fees and expense of any
additional counsel retained by them. If the Distributor does not
elect to assume the defense of any suit, it will reimburse the
Trust, officers or controlling person(s), defendant(s) in the
suit, for the reasonable fees and expenses of any counsel
retained by them. The Distributor agrees to notify the Trust
promptly of the commencement of any litigation or proceedings
against it in connection with the Trust and sale of any of the
Shares.
15. Supplemental Information -- The Distributor and the Trust
shall regularly consult with each other regarding the
Distributor's performance of its obligations under this
Agreement. In connection therewith, the Trust shall submit to the
Distributor at a reasonable time in advance of filing with the
SEC reasonably final copies of any amended or supplemented
registration statement (including exhibits) under the 1933 Act
and the 1940 Act; provided, however, that nothing contained in
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 or statement of additional
information, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and
unconditional.
The Distributor acknowledges that the only information provided
to it by the Trust is that contained in the registration
statement, the prospectus, the statement of additional
information and reports and financial information referred to
herein. Neither the Distributor nor any other person is
authorized by the Trust to give any information or to make any
representations, other than those contained in such documents and
any sales literature or advertisements specifically approved by
appropriate representatives of the Trust.
16. Term -- This Agreement shall become effective as of
, 2002, and shall continue until one year from such
date and thereafter shall continue automatically for successive
annual periods, provided such continuance is specifically
approved at least annually (i) by the Trust's Board of Trustees
or (ii) by a vote of a majority of the outstanding voting
securities of the relevant Series of the Trust (as defined in the
1940 Act), provided that in either event the continuance is also
approved by the majority of the Trustees of the Trust who are not
interested persons (as defined in the ▇▇▇▇ ▇▇▇) of any party to
this Agreement by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable
without penalty on sixty days' written notice by the Trust's
Board of Trustees, by vote of the holders of a majority of the
outstanding voting securities of the relevant Series of the Trust
or by the Distributor. This Agreement shall automatically
terminate in the event of its assignment (as defined in the 1940
Act).
Upon the termination of this Agreement, the Distributor, at the
Trust's expense and direction, shall transfer to such successor
as the Trust shall specify all relevant books, records and other
data established or maintained by the Distributor under this
Agreement.
17. Notice-- Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by
(i) telecopier (fax) or (ii) registered or certified mail,
postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to
the party giving notice: if to the Trust at ____________________,
Attn: with a copy to: Attn: General Counsel; and if to the
Distributor, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, or such other telecopier (fax) number
or address as may be furnished by one party to the other.
18. Confidential Information -- The Distributor, its officers,
directors, employees and agents will treat confidentially and as
proprietary information of the Trust all records and other
information relative to the Trust and to prior or present
shareholders or to those persons or entities who respond to the
Distributor's inquiries concerning investment in the Trust, and
will not use such records and information for any purposes other
than performance of its responsibilities and duties hereunder. If
the Distributor is requested or required by, but not limited to,
depositions, interrogatories, requests for information or
documents, subpoena, civil investigation, demand or other action,
proceeding or process or as otherwise required by law, statute,
regulation, writ, decree or the like to disclose such
information, the Distributor will provide the Trust with prompt
written notice of any such request or requirement so that the
Trust may seek an appropriate protective order or other
appropriate remedy and/or waive compliance with this provision.
If such order or other remedy is not sought, or obtained, or
waiver not received within a reasonable period following such
notice, then the Distributor may without liability hereunder,
disclose to the person, entity or agency requesting or requiring
the information, that portion of the information that is legally
required in the reasonable opinion of the Distributor's counsel.
19. Limitation of Liability -- The Distributor is expressly put
on notice of the limitation of shareholder, officer and Trustee
liability as set forth in the Declaration of Trust of the Trust
and agrees that the obligations assumed by the Trust under this
contract shall be limited in all cases to the Trust and its
assets. The Distributor agrees that it shall not seek
satisfaction of any such obligation from the shareholders or any
individual shareholder of the Trust. Nor shall the Distributor
seek satisfaction of any such obligation from the Trustees,
officers or any individual Trustee or officer of the Trust. The
Distributor understands that the rights and obligations of each
series of the Trust under the Trust's Declaration of Trust are
separate and distinct from those of any and all other series.
Any obligations of the Trust entered into in the name or on
behalf thereof by any of the Trustees or officers,
representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees or
officers, shareholders, or representatives of the Trust
personally, but bind only the Trust property, and all persons
dealing with any class of Shares of the Trust must look solely to
the Trust property belonging to such class for the enforcement of
any claims against the Trust.
20. Miscellaneous -- Each party agrees to perform such further
acts and execute such further documents as are necessary to
effectuate the purposes hereof. This Agreement shall be
construed, interpreted, and enforced in accordance with and
governed by the laws of the State of Colorado. The captions in
this Agreement are included for convenience of reference only and
in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. This Agreement may
not be changed, waived, discharged or amended except by written
instrument that shall make specific reference to this Agreement
and which shall be signed by the party against which enforcement
of such change, waiver, discharge or amendment is sought. This
Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one
and the same instrument.
All activities by the Distributor and its agents and employees as
distributor of the Shares shall comply with all applicable laws,
rules and regulations including, without limitation, all rules
and regulations made or adopted by the SEC or any securities
association registered under the Exchange Act.
The Distributor will promptly transmit any orders received by it
for purchase, redemption or exchange of the Shares to the Trust's
transfer agent.
IN WITNESS WHEREOF, the Trust has executed this instrument in its
name and behalf, and the Distributor has executed this instrument
in its name and behalf, as of the date and year first above
written.
ALPS DISTRIBUTORS, INC.
By: By:
----------------------- -----------------------------
Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Title: Chief Financial Officer
04088.0001 #332394
