DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 30th day of September, 1997 between INVESCO
EMERGIN OPPORTUNITY FUNDS, INC., a Maryland corporation (the "Fund"), and
INVESCO DISTRIBUTORS, 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 has one class of shares (the
"Shares") representing an interest in a 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 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
legally may 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 of such
other investment company for the Shares of the Fund.
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. 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 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 Share, determined in accordance
with the Prospectus and/or SAI applicable to the sale of the
Shares.
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. 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.
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
Prospectus and/or 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/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 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 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 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
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, 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 EMERGING OPPORTUNITY
FUNDS, INC.
ATTEST:
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
President
/s/ Xxxx X. Xxxxx
----------------------
Xxxx X. Xxxxx
Secretary
INVESCO DISTRIBUTORS, INC.
ATTEST:
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
/s/ Xxxx X. Xxxxx
----------------------
Xxxx X. Xxxxx
Secretary