DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 20th day of October, 1993 between INVESCO
MULTIPLE ASSET FUNDS, INC., a Maryland corporation (the "Fund"), and INVESCO
FUNDS GROUP, INC., a Delaware corporation (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Fund 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 proposes to have one class of shares (the
"Shares") which is divided into two series, and which may be divided into
additional series (the "Series"), each representing an interest in a separate
portfolio of investments, and it is in the interest of the Fund 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 Fund 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 Fund 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 Fund 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 Fund 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 provision hereof, the Fund may
terminate, suspend or withdraw the offering of Shares
whenever, in its sole discretion, it deems such action to
be desirable. The Fund 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 shall 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 Fund'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
Fund, 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 Fund may
reasonably request from time to time. It is expressly understood
that the Underwriter or the Fund 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 Fund, 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 Fund.
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 Fund under the 1933 Act (the "Registration
Statement") and related Prospectus (the "Prospectus") and Statement
of Additional Information ("SAI") of the Fund 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
Fund without the prior consent of the directors (the "Directors") of
the Fund. 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 Fund 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 Fund, in accordance with
applicable rules and regulations of the Securities and
Exchange Commission. The price the Fund shall receive
for the Shares of each Series purchased from the Fund
shall be the net asset value per share of such Share,
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 Fund, 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 Fund may utilize the
services of other persons or entities believed by it to
be competent to perform such functions. Shares shall be
registered on the transfer books of the Fund in such
names and denominations as the Underwriter may specify.
7. The Fund 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 Fund as a
broker-dealer where necessary or advisable) in such
states as the Underwriter may reasonably request (it
being understood that the Fund shall not be required
without its consent to comply with any requirement which
in the opinion of the Directors of the Fund 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 Fund may reasonably
request.
8. The Fund shall prepare and furnish to the Underwriter
from time to time the most recent form of the Prospectus
and/or SAI of the Fund and/or of each Series of the Fund.
The Fund 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 Fund and/or of each Series of the Fund.
The Fund will furnish to the Underwriter from time to
time such information with respect to the Fund, 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 Fund 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 Fund
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 Fund 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
Fund, may cause the redemption 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 or redeeming the Shares for the account of the
Fund, 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 or
redemption, 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 Fund 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 Fund shall indemnify, defend and hold harmless
the Underwriter, its officers and directors and any
person who controls the Underwriter within the
meaning 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 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.
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 or 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 Fund, the
Directors or the Fund'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
Fund'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 Fund at its principal address in
Denver, Colorado and sent to the Fund 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 Fund of any such
action shall not relieve the Fund 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 Fund 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 Fund and approved by the Underwriter,
which approval shall not be unreasonably withheld. If the Fund
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 an
additional counsel obtained by any of them. Should the Fund
elect not to assume the defense of any such suit, or should
the Underwriter not approve of counsel chosen by the Fund, the
Fund 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
liability arising out of any claim in respect of which
indemnity may be sought by the Underwriter against the Fund
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 Fund. This
indemnity agreement and the Fund'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 Fund
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 Fund, its Directors and any
person who controls the Fund within the meaning 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 Fund,
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 Fund, 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 Fund 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 Fund's agent that has not been expressly
authorized by the Fund in writing.
Notwithstanding the foregoing, this indemnity agreement, to the extent that
it might require indemnity of the Fund or any Director or controlling person of
the Fund, shall not inure to the benefit of the Fund 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 Fund against any liability to the Fund or the Fund'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 office.
This indemnity agreement is expressly conditioned upon the Underwriter's
being notified of any action brought against the Fund, its Directors or any such
controlling person, which 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 Fund, 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 Fund, 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
Fund, the defendant or defendants in such suit shall bear the fees and expenses
of an additional counsel obtained by any of them. Should the Underwriter elect
not to assume the defense of any such suit, or should the Fund not approve of
counsel chosen by the Underwriter, the Underwriter will reimburse the Fund, 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 Fund or them. In addition, the Fund 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 Fund against the Underwriter hereunder if in the
reasonable judgment of the Fund it is advisable for the Fund, 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 Fund and its successors, the Fund's Directors and their respective estates
and any such controlling person and their successors and estates. The
Underwriter shall promptly notify the Fund of the commencement of any litigation
or proceeding against it in connection with the issue and sale of the Shares.
12. The Fund 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
Fund'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 Fund's
approval thereof.
13. This Agreement shall become effective as of the date it
is approved by a majority vote of the Directors of the
Fund, as well as a majority vote of the Directors who are
not "interested persons" (as defined in the Investment
Company Act) of the Fund, and shall continue in effect
for an initial term expiring April 30, 1995, 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 Fund or (ii) by
a vote of a majority of the outstanding voting securities
of the Fund, and (b) by a vote of a majority of the
Directors of the Fund who are not "interested persons,"
as defined in the Investment Company Act, of the Fund
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
at any time, without payment of any penalty, by vote of a majority
of the members of the Directors of the Fund or by a vote of a
majority of the outstanding voting securities of the Fund on not
more than 60 days' written notice to the Underwriter.
Without prejudice to any other remedies of the Fund provided for in
this Agreement or otherwise, the Fund 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 the Fund for any obligations of the Fund hereunder
and nothing herein shall be construed to create any personal
liability on the part of any Director or any shareholder of the
Fund.
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
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 Fund 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.
IN WITNESS WHEREOF, the Fund 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.
INVESCO MULTIPLE ASSET FUNDS, INC.
ATTEST:
By:/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
President
/s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
Secretary
INVESCO FUNDS GROUP, INC.
ATTEST: By:/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
/s/ Xxxx X. Xxxxx
----------------------------------
Xxxx X. Xxxxx
Secretary
