GENERAL DISTRIBUTION AGREEMENT
AGREEMENT dated as of August 1, 1997 between Stonebridge Aggressive Growth
Fund, Inc., a Delaware corporation (the "Fund"), and ALPS Mutual Funds Services,
Inc., a Colorado corporation and a registered broker-dealer under the Securities
Exchange Act of 1934, having its principal place of business in Denver, Colorado
(the "Distributor").
WHEREAS, the Fund wishes to employ the services of the Distributor in
connection with the promotion and distribution of the Fund's shares of common
stock (the "Shares");
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties agree as follows:
1. Documents - The Fund has furnished the Distributor with copies of the
Fund's Articles of Incorporation, Investment Advisory Agreement, Administration
Agreement, Custody Agreement, Transfer Agency and Service Agreement, current
Prospectus and Statement of Additional Information, and all forms relating to
any plan, program or service offered by the Fund. The Fund shall furnish
promptly to the Distributor a copy of any amendment or supplement to any of the
above-mentioned documents. The Fund shall furnish promptly to the Distributor
any additional documents necessary or advisable to perform its functions
hereunder.
2. Sale of Shares - The Fund grants to the Distributor the right to sell the
Shares as agent on behalf of the Fund, during the term of this Agreement,
subject to the registration requirements of the Securities Act of 1933, as
amended (the "1933 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 (i) shall have the right to sell, as agent
on behalf of the Fund, Shares authorized for issue and registered under the 1933
Act, and (ii) may sell Shares under offers of exchange, if available, between
and among other funds advised by the Fund's investment adviser, Stonebridge
Capital Management, Incorporated (the "Investment Adviser").
3. Sale of Shares by the Fund - The rights granted to the Distributor shall be
nonexclusive in that the Fund reserves the right to sell Shares to investors on
applications received and accepted by the Fund. Further, the Fund reserves the
right to issue Shares in connection with the merger, consolidation or other
combination by the Fund, through purchase or otherwise, with any other entity.
4. Shares Covered by this Agreement - This Agreement shall apply to unissued
Shares of the Fund, Shares of the Fund held in its treasury in the event that in
the discretion of the Fund, treasury Shares shall be sold, and Shares of the
Fund repurchased for resale.
5. Public Offering Price - Except as otherwise noted in the Fund's current
Prospectus and/or Statement of Additional Information, all Shares sold to
investors by the Distributor or the Fund 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 Fund's
current
Prospectus and/or Statement of Additional Information, plus a sales charge
(if any) described in the Fund's current Prospectus and/or Statement of
Additional Information. The Fund 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
Securities and Exchange Commission ("SEC") 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 Fund. If a fee in connection with shareholder redemptions is in
effect, the Fund shall collect the fee on behalf of the Distributor and,
unless otherwise agreed upon by the Fund and the Distributor, the Distributor
shall be entitled to receive all of such fees.
6. Suspension of Sales - If and whenever the determination of net asset value
is suspended and until such suspension is terminated, no further orders for
Shares shall be processed by the Distributor except such unconditional orders as
may have been placed with the Distributor before it had knowledge of the
suspension. In addition, the Fund reserves the right to suspend sales and the
Distributor's authority to process orders for Shares on behalf of the Fund if,
in the judgment of the Fund, it is in the best interests of the Fund to do so.
Suspension will continue for such period as may be determined by the Fund.
7. Solicitation of Sales - In consideration of these rights granted to the
Distributor, the Distributor agrees to use all reasonable efforts, consistent
with its other business, to secure purchasers for Shares of the Fund. This
shall not prevent the Distributor from entering into like arrangements
(including arrangements involving the payment of underwriting commissions) with
other issuers. If a sales charge is in effect, the Distributor shall have the
right to enter into sales agreements with dealers of its choice for the sale of
Shares of the Fund to the public at the public offering price only and fix in
such agreements the portion of the sales charge which may be retained by
dealers, provided that the Fund shall approve the form of the dealer agreement
and the dealer discounts set forth therein and shall evidence such approval by
filing said form of dealer agreement and amendments thereto as an exhibit to its
currently effective Registration Statement.
All activities by 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 pursuant to the
1940 Act by the SEC or any securities association registered under the
Securities Exchange Act of 1934.
The Distributor will provide one or more persons, during normal business hours
(7:00 a.m. to 6:00 p.m. Mountain Time), as required, to respond to telephone
questions with respect to the Fund.
The Distributor will promptly transmit any orders received by it for purchase,
redemption or exchange of the Shares to the Fund's transfer agent, and will
promptly transmit any payments for shares to the Fund's transfer agent or
custodian.
8. Authorized Representations - The Distributor is not authorized by the Fund
to give any information or to make any representations other than those
contained in the appropriate
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Registration Statement or Prospectus and Statement of Additional Information
filed with the SEC under the 1933 Act (as such Registration Statement,
Prospectus and Statement of Additional Information may be amended from time to
time), or contained in shareholder reports or other material that may be
prepared by or on behalf of the Fund 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 Fund,
provided such sales literature complies with applicable law and regulation.
9. Registration of Shares - The Fund agrees that it will take all action
necessary to register the Shares under the 1933 Act so that there will be
available for sale the number of Shares the Distributor may reasonably be
expected to sell. The Fund shall make available to the Distributor, at the
Distributor's expense, such number of copies of its currently effective
Prospectus and Statement of Additional Information as the Distributor may
reasonably request. The Fund, at its expense, shall furnish to the Distributor
copies of all information, financial statements and other records which the
Distributor may reasonably request for use in connection with the distribution
of Shares of the Fund.
10. Distribution Expenses - Unless otherwise agreed to by the parties hereto in
writing, the Distributor shall bear all expenses in connection with the
performance of its services hereunder, including, but not limited to, the cost
of printing and distributing any Prospectuses and Statements of Additional
Information or reports in connection with the offering of Shares for sale to the
public other than those required to be distributed to existing shareholders of
the Fund. The cost to the Distributor shall be the incremental cost of
preparing materials above those required to satisfy existing shareholder
requirements. The Distributor shall have no obligation to pay or to reimburse
the Fund for any other expenses incurred by or on behalf of the Fund.
11. Fund Expenses - Unless otherwise agreed to by the parties hereto in writing
or by the Fund and the Fund's other agents, the Fund shall pay all fees and
expenses in connection with (a) the filing of any registration statement under
the 1933 Act and amendments prepared for use in connection with the offering of
Shares for sale to the public, (b) preparing, setting in type, printing and
mailing Prospectuses, Statements of Additional Information and any supplements
thereto sent to existing shareholders, (c) preparing, setting in type, printing
and mailing any report (including Annual and Semi-Annual Reports) or other
communication to shareholders of the Fund, and (d) the Blue Sky registration and
qualification of Shares for sale in the various states in which the Board of
Directors of the Fund shall determine it advisable to qualify such Shares for
sale (including registering the Fund as a broker or dealer or any officer of the
Fund as agent or salesman in any state).
12. Use of the Distributor's Name - The Fund 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 Prospectuses and Statements of Additional Information of the
Fund and in all other materials
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which merely refer in accurate terms to their appointments hereunder or which
are required by the SEC, NASD, OCC or any state securities authority
13. Use of the Fund's Name - Neither the Distributor nor any of its affiliates
shall use the name of the Fund in any Prospectuses or Statements of Additional
Information, sales literature, or other material relating to the Fund on any
forms for other than internal use in any manner without the prior consent of the
Fund (which shall not be unreasonably withheld); provided however, that the Fund
hereby approves all lawful uses of its name in sales literature and all other
materials which are required by the Distributor in the discharge of its duties
hereunder 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.
14. 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. The Distributor shall notify the Fund
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
Fund of any material claim against the Distributor, whether or not covered by
insurance, and shall notify the Fund from time to time as may be appropriate of
the total outstanding claims made by the Distributor under its insurance
coverage.
15. Indemnification - The Fund agrees to indemnify and hold harmless the
Distributor and each of its directors, officers and employees, 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) which any such person may incur in connection with any action, suit,
investigation or proceeding arising out of or based upon the ground that the
Registration Statement, Prospectus, Statement of Additional Information,
shareholder reports or other information filed or made public by the Fund (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, or any other statute or
the common law. However, the Fund 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 Fund by or
on behalf of the Distributor.
Notwithstanding the foregoing, the Fund shall not be required to indemnify any
person hereunder unless a court of competent jurisdiction has determined, in a
final decision on the merits, that the person to be indemnified was not liable
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of such person's duties, or by reason of such person's reckless
disregard of such person's obligations under this Agreement ("disabling
conduct"), or, in the absence of such a decision, a reasonable determination,
based upon a review of the facts, that the indemnified person was not liable by
reason of disabling conduct by (i) a vote of a majority of a quorum of the Board
of Directors of the Fund who are neither "interested persons" of the Fund as
defined in Section 2(a)(19) of the 1940 Act nor parties to the proceeding, or
(ii) an independent legal counsel in a written opinion.
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In no case (i) is the indemnity of the Fund in favor of the Distributor or any
other person indemnified herein to be deemed to protect the Distributor or any
other person against any liability to the Fund or its security holders to which
the Distributor or such other person 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, or (ii) is the Fund to be liable under its indemnity
agreement contained in this paragraph with respect to any claim made against the
Distributor or such other person indemnified herein unless the Distributor or
such other person, as the case may be, shall have notified the Fund in writing
of the claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Distributor or such other person (or after the Distributor or
such other person shall have received notice of service on any designated
agent). However, failure to notify the Fund of any claim shall not relieve the
Fund from any liability which it may have to the Distributor or such other
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Fund 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 such claims, but if the Fund
elects to assume the defense, the defense shall be conducted by counsel chosen
by the Fund and reasonably satisfactory to the Distributor or such other person
or persons, defendant or defendants in the suit. In the event the Fund elects
to assume the defense of any suit and retain counsel, the Distributor, its
officers or directors or controlling person or persons, or such other person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by it or them. If the Fund does not elect to
assume the defense of any suit, it will reimburse the Distributor, its officers
or directors or controlling person or persons, or such other person or persons,
defendant or defendants in the suit for the reasonable fees and expenses of any
counsel retained by it or them. The Fund agrees to notify the Distributor
promptly of the commencement of any litigation or proceedings against it or any
of its officers or Directors in connection with the issuance or sale of any of
the Shares.
The Distributor agrees to indemnify and hold harmless the Fund and each of its
Directors, officers and employees, and each person, if any, who controls the
Fund 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) which such
person may incur in connection with any action, suit, investigation or
proceeding arising out of or based upon the 1933 Act or any other statute or
common law, alleging any wrongful act of the Distributor or any of its employees
or alleging that the Registration Statement, Prospectus, Statement of Additional
Information, shareholder reports or other information filed or made public by
the Fund (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 Fund by or on behalf of the Distributor. In no
case (i) is the indemnity of the Distributor in favor of the Fund or such other
person indemnified to be deemed to protect the Fund or such other person against
any liability to which the Fund or such other person would otherwise be subject
by reason of willful misfeasance, bad faith or gross negligence in
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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 Fund or such other person indemnified unless the Fund
or such other person, as the case may be, shall have notified the Distributor in
writing of the claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim shall have
been served upon the Fund or such other person (or after the Fund or such other
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 such other 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 any such claim,
but if the Distributor elects to assume the defense, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the Fund, to
its officers and Directors and to any controlling person or persons, or such
other person or persons, defendant or defendants in the suit. In the event
that the Distributor elects to assume the defense of any suit and retain
counsel, the Fund or its controlling person or persons, or such other person or
persons, defendant or defendants in the suit, shall bear the fees and expense of
any additional counsel retained by it or them. If the Distributor does not
elect to assume the defense of any suit, it will reimburse the Fund, its
officers and Directors or controlling person or persons, or such other person or
persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by it or them. The Distributor agrees to
notify the Fund promptly of the commencement of any litigation or proceedings
against it in connection with the issuance and sale of any of the Shares.
16. Liability of the Distributor - The Distributor shall not be liable for any
damages or loss suffered by the Fund in connection with the matters to which
this Agreement relates, except for (a) damage or loss resulting from willful
misfeasance, bad faith or gross negligence on the Distributor's part in the
performance, or reckless disregard, of its duties under this Agreement, and (b)
damage and loss for which the Distributor has agreed to indemnify the Fund under
Section 15 of this Agreement. Any person, even though also an officer, partner,
employee or agent of the Distributor or any of its affiliates, who may be or
become an officer of the Fund, shall be deemed, when rendering services to or
acting on any business of the Fund in any such capacity (other than services or
business in connection with the Distributor's duties under this Agreement), to
be rendering such services to or acting solely for the Fund and not as an
officer, partner, employee or agent or one under the control or direction of the
Distributor or any of its affiliates, even if paid by the Distributor or an
affiliate thereof.
17. Acts of God, Etc. - The Distributor shall not be liable for delays or
errors occurring by reason of circumstances not reasonably foreseeable and
beyond its control, including but not limited to acts of civil or military
authority, national emergencies, work stoppages, fire, flood, catastrophe, acts
of God, insurrection, war riot, or failure of communication or power supply. In
addition, in the event of equipment breakdowns which are (i) beyond the
reasonable control of the Distributor and (ii) not primarily attributable to the
failure of the Distributor to reasonably maintain or provide for the maintenance
of such equipment, the Distributor shall, at no additional
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expense to the Fund, take reasonable steps in good faith to minimize service
interruptions but shall have no liability with respect thereto.
18. Supplemental Information - The Distributor and the Fund shall regularly
consult with each other regarding the Distributor's performance of its
obligations under this Agreement. In connection therewith, the Fund shall
submit to the Distributor at a reasonable time in advance of filing with the SEC
copies of any amended or supplemented Registration Statements (including
exhibits) under the 1933 Act and the 1940 Act, and, a reasonable time in advance
of their proposed use, copies of any amended or supplemented forms relating to
any plan, program or service offered by the Fund. Any change in such material
which would require any change in the Distributor's obligations under the
foregoing provisions shall be subject to the Distributor's approval, which shall
not be unreasonably withheld.
19. Term - This Agreement will become effective as of the date first written
above or such later date as may be agreed upon by the parties hereto, and shall
continue until ___________, 1999, and thereafter shall continue automatically
for successive annual periods, provided such continuance is specifically
approved at least annually (i) by the Fund's Board of Directors or (ii) by a
vote of a majority of the outstanding Shares of the Fund (as defined in the 1940
Act), provided that in either event the continuance is also approved by the
majority of the Fund's Directors who are not parties to the Agreement or
interested persons (as defined in the 0000 Xxx) 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 not less than sixty
days' notice by the Fund's Directors, by vote of a majority of the outstanding
Shares of the Fund (as defined in the 0000 Xxx) or by the Distributor. Any
termination shall not affect the rights and obligations of the parties under
Sections 15, 19 or 21 hereof. 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 Fund's expense
and direction, shall transfer to such successor as the Fund shall specify all
relevant books, records and other data established or maintained by the
Distributor under this Agreement.
20. Notice - Any notice required or permitted to be given by either party to
the other hereunder shall be deemed sufficient if sent by (i) telex, (ii)
telecopier, or (iii) registered or certified mail, postage prepaid, addressed by
the party giving notice to the other party at the following address or at such
other address as may from time to time be furnished by the other party to the
party giving notice: if to the Fund at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx and if to the Distributor, at
000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000, Attn: Xxxxx X. Xxxxx.
21. Confidential Information - The Distributor, its officers, directors,
employees and agents will treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund and to prior or
present shareholders or to those persons or entities who respond to the
Distributor's inquiries concerning investment in the Fund, and will not use such
records and information for any purposes other than performance of its
responsibilities
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and duties hereunder. If the Distributor is requested or required by oral
questions, interrogatories, request for information or documents, or subpoena in
connection with any civil investigation, demand or other action, proceeding or
process or is otherwise required by law, statute, regulation, writ, decree or
the like to disclose such information, the Distributor will provide the Fund
with prompt written notice of any such request or requirement so that the Fund
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, 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 opinion of Distributor's counsel.
22. 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 and enforced in accordance with and governed by the
laws of the State of Colorado to the extent federal law does not govern. 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. Except as otherwise provided herein or under the 1940
Act, this Agreement may not be changed, waived, discharged or amended except by
written instrument which 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.
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IN WITNESS WHEREOF, the Fund has executed this instrument in its name and
behalf by one of its officers duly authorized, and the Distributor has executed
this instrument in its name and behalf by one of its officers duly authorized,
as of the day and year first above written.
ALPS MUTUAL FUNDS
SERVICES, INC.
By: /s/ Xxxxxx X Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
STONEBRIDGE AGGRESSIVE GROWTH
FUND, INC.
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President
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