Exhibit (e)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made this 1st day of July, 2003, between each of the
registered investment companies listed on Schedule A as may be amended from time
to time, each a Maryland corporation (each individually referred to as the
"Company") on behalf of those series of the Company listed on Schedule A as may
be amended from time to time (the "Series"), and Fund Management Company, 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 has one class of shares which is
divided into series, and which may be divided into additional series (the shares
of each Series which are covered by this Agreement are referred to herein as the
"Shares"), 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
Series 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 Series 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 Series directly to purchasers, or (b) issue or sell Shares of a
particular Series to the shareholders of any other Series 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 Series or in shares of such other investment company
for the Shares of a particular Series. Notwithstanding any other
provisions hereof, the Company may terminate, suspend or withdraw the
offering of Shares whenever, in the Company's 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 may 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 Shares, 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 Series. The
Company will have no obligation to pay any commissions or other
remuneration to such broker-dealers.
5. The Shares of each Series 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 Series 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 that
the Company shall receive for the Shares of each Series purchased from
the Company shall be the net asset value per share of such Shares,
determined in accordance with the Prospectus and/or SAI applicable to
the sale of the Shares of such Series.
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 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.
2
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 Series of the Company. 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 Series of the Company. The
Company will furnish to the Underwriter from time to time such
information with respect to the Company, each Series, 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 Series, 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 or repurchase 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, redeeming or repurchasing 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, redemption or repurchase, 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 Section 15 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
3
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, except insofar as such claims, demands,
liabilities or expenses arise out of or are based upon any such
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information
furnished in writing by the Underwriter to the Company for use in
the Registration Statement or any related Prospectus and/or SAI.
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 of 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 any 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
4
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 Section 15 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
or her 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
5
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 any 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 with respect to a Company or
Series of a Company as of the date set forth on Schedule A of this
Agreement, provided that on or prior to such date it is approved by a
majority vote of the Directors of the Company, as well as a majority
vote of the Directors who are not "interested persons" (as defined in
6
the Investment Company Act) of the Company cast in person at a meeting
called for the purpose of voting on this Agreement. This Agreement
shall continue in effect for an initial term expiring May, 31, 2005,
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 or Series, as applicable,
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 with respect
to a Company (and/or one or more Series of a Company) 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 or Series, as applicable,
on not more than 60 days' written notice to the Underwriter.
Without prejudice to any other remedies of a 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 a 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 a 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 and
interpretations thereunder 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.
7
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.
COMPANY (LISTED IN SCHEDULE A)
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
FUND MANAGEMENT COMPANY
By: /s/ Xxxxx Xxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: President
8
UNDERWRITING AGREEMENT
SCHEDULE A
REGISTERED
INVESTMENT
COMPANY FUNDS EFFECTIVE DATE
--------------------------------------------------------------------------------
INVESCO TREASURER'S SERIES FUNDS, INC. JULY 1, 2003
INVESCO Treasurer's Money Market Reserve Fund
INVESCO Treasurer's Tax Exempt Reserve Fund
9
