DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 28th day of February, 1997, by and between
INVESCO ADVISOR FUNDS, INC. (formerly known as The EBI Funds, Inc.), a Maryland
corporation (the "Fund"), and INVESCO SERVICES, INC., a Georgia 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 whose authorized common shares ("Shares") are divided into
series (Equity Portfolio, Income Portfolio, Flex Portfolio, MultiFlex Portfolio,
Real Estate Portfolio, International Value Portfolio, and Cash Management
Portfolio), each of which series offers two classes of Shares and which may be
divided into additional series, each representing an interest in a separate
portfolio of investments, and additional classes of such series, 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 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 in jurisdictions wherein such
Shares may legally be offered for sale; provided,
however, that the Fund in its absolute discretion may
(a) issue or sell Shares directly to purchasers, or (b)
issue or sell Shares 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 or in shares of such other investment company for
the Shares. Notwithstanding any other provision hereof,
the Fund may terminate, suspend or withdraw the offering
of Shares or of one or more series or class(es) 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 net 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. The Fund will
have no obligation to pay any commissions or other remuneration to
such broker-dealers.
5. The Shares offered for sale or sold by the Underwriter
shall be offered or sold at the net asset value per
share, with or without a sales charge, determined in
accordance with the then-current Prospectus and/or SAI
relating to the sale of the Shares 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 purchased from the Fund 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.
6. Except as may otherwise be 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(s) of the Prospectus(es) and SAI(s) of the
Fund. The Fund authorizes the Underwriter to use the Prospectus(es)
and SAI(s), in the forms furnished to the Underwriter from time to
time, in connection with the sale of the Shares
of the Fund. The Fund will furnish to the Underwriter from time to
time such information with respect to the Fund 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 applicable
Prospectus and SAI of the Fund, 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 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 or repurchase of the
Shares at such prices and upon such terms and conditions
as shall be specified in a then-current applicable Prospectus and
SAI. In selling, redeeming or repurchasing 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,
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 Fund and of any provisions in the Registration
Statement, Prospectus(es) and SAI(s), 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, 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
Atlanta, Georgia 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 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 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 Officers and 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 Officers
and 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 Officers and 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
Officer, Director or controlling person of the Fund, shall not
inure to the benefit of the Fund or any Officer 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 Officers or Directors or any such controlling
person, which notification shall be given by letter or
telegram addressed to
the Underwriter at its principal office in Atlanta, Georgia,
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 Officers, 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 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 Officers, Directors or
such controlling person to be represented by separate counsel,
in which event the 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 Officers and 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. Except as may be provided in one or more other agreements
between the Fund and the Underwriter or third parties,
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, (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 having been approved by a majority vote
of the Directors of the Fund, as well as a majority vote
of the Directors who, except for their positions as
Directors of the Fund, are not "interested persons" (as
defined in the Investment Company Act) of the Fund and
who have no direct or indirect financial interest in the
operation of this Agreement ("Disinterested Directors"),
shall become effective as of February 28, 1997, and shall
continue in effect for an initial term expiring February
28, 1998, 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 or, where required by
applicable law, regulation or regulatory policy, of each
applicable series and/or class with respect to that
series or class, and (b) by a vote of a majority of the
Disinterested Directors, cast in person at a meeting
called 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 Disinterested Directors, or by vote of a majority of the
outstanding voting securities of the Fund or, where required by
applicable law, regulation or regulatory policy, of each applicable
series and/or class with respect to that series or class, 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. This Agreement shall automatically terminate in the event of its
assignment. In interpreting the provisions of this Section 14, the
definition of "assignment" contained in the Investment Company Act
shall be applied.
15. This Agreement may not be amended to increase the amount
to be spent by the Fund or a series or class hereunder
without approval of shareholders of the Fund or of each
applicable series or class. All material amendments to
the Agreement must be approved by the vote of the Board
of Directors of the Fund, including a majority of the
Disinterested Directors, cast in person at a meeting
called for the purpose of voting on such amendment.
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 Georgia.
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 ADVISOR FUNDS, INC.
ATTEST: By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
/s/ Xxxx X. Xxxxx Xxxxxx X. Xxxxxx, Xx.
--------------------------- President
Secretary
[CORPORATE SEAL] INVESCO SERVICES, INC.
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxx -------------------------------------
--------------------------- Xxxxxxx X. Xxxxxx
Secretary President
