Exhibit 99.E(6)
ICON FUNDS
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED DISTRIBUTION AGREEMENT (the "Agreement"), dated
as of May__, 2006, is between the ICON Funds (the "Trust"), a Massachusetts
business trust, ICON Advisers, Inc. (the "Adviser"), a Colorado corporation, and
ICON Distributors, Inc. ("IDI"), a Colorado corporation.
The Trust is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "IC Act") and has registered
its shares of common stock (the "Shares") under the Securities Act of 1933, as
amended (the " 1933 Act") in one or more distinct series of Shares (the "Fund"
or "Funds"). The Adviser has been appointed investment adviser to the Funds of
the Trust. IDI is registered as a broker-dealer with the U.S. Securities and
Exchange Commission (the "SEC") and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"). The Trust, the Adviser and
the Distributor desire to amend and restate the Distribution Agreement pursuant
to which the Distributor will provide distribution services to the Funds of the
Trust identified on Schedule A, as may be amended from time to time. The Funds
desire to retain IDI as Distributor of the Fund ("Distributor"), subject to the
terms and conditions of this Agreement.
In consideration of the premises and mutual covenants contained in this
Agreement, the Trust, the Adviser and IDI, intending to be legally bound hereby,
agree as follows:
I. APPOINTMENT OF DISTRIBUTOR. The Trust hereby appoints IDI as Distributor for
the distribution of the Trust's Shares, and IDI hereby accepts such appointment
under the terms of this Agreement. The Trust shall not sell any Shares to any
person except to fill orders for the Shares received through the Distributor;
provided, however, that the foregoing exclusive right shall not apply: (i) to
Shares issued or sold in connection with the merger or consolidation of any
other investment company with the Trust or the acquisition by purchase or
otherwise of all or substantially all of the assets of any investment company or
substantially all of the outstanding shares of any such company by the Trust;
(ii) to Shares which may be offered by the Trust to its shareholders for
reinvestment of cash distributed from capital gains or net investment income of
the Trust; or (iii) to Shares which may be issued to shareholders of other funds
who exercise any exchange privilege set forth in the Trust's Prospectus.
Notwithstanding any other provision hereof, the Trust may terminate, suspend, or
withdraw the offering of the Shares whenever, in its sole discretion, it deems
such action to be desirable, and the Distributor shall process no further orders
for Shares after it receives notice of such termination, suspension or
withdrawal.
2. TRUST DOCUMENTS. The Trust has provided the Distributor with properly
certified or authenticated copies of the following Trust related documents in
effect on the date hereof: the Trust's organizational documents, including
Master Trust Agreement and By-Laws; the Trust's Registration Statement on Form
N-IA, including all exhibits thereto; the Trust's most current Prospectus and
Statement of Additional Information; and resolutions of the Trust's Board of
Trustees authorizing the appointment of the Distributor and approving this
Agreement. The Trust shall promptly provide to the Distributor copies, properly
certified or authenticated, of all amendments or supplements to the foregoing.
The Trust shall also provide to the Distributor copies of all other information
which a Distributor may reasonably request for use in connection with the
distribution of Shares, including, but not limited to, a certified copy of all
financial statements prepared for the Trust by its independent public
accountants. The Trust shall also supply the Distributor with such number of
copies of the current Prospectus, Statement of Additional Information and
shareholder reports as the Distributor shall reasonably request.
3. DISTRIBUTION SERVICES. The Distributor shall sell and repurchase Shares as
set forth below, subject to the registration requirements of the 1933 Act and
the rules and regulations thereunder, and the laws governing the sale of
securities in the various states ("Blue Sky Laws"):
a. The Distributor, as agent for the Trust, shall sell Shares to the public
against orders therefore at the net asset value or at the public offering price
with respect to Funds offering Class A shares as set forth on Schedule A.
With respect to Fund's offering Class A shares set forth on schedule A, the
public offering price shall be the net asset value of the Fund, plus any
applicable sales charge, all as set forth in the current prospectus and
statement of additional information ("Prospectus") of the Trust relating to the
Funds offering such Class. In no event shall the public offering price exceed
1000/935 of such net asset value, and in no event shall any applicable sales
charge or underwriting discount exceed 6.5% of the public offering price. The
net asset value of Series shares shall be determined in accordance with the
provisions of the agreement and Master Trust Agreement and by-laws of the Trust
and the current prospectus of the Trust relating to the Series shares.
b. With respect to Funds that do not offer Class A shares, the net asset
value of the Shares shall be determined in the manner provided in the then
current Prospectus and Statement of Additional Information. The net asset value
of the Shares shall be calculated by the Trust or by another entity on behalf of
the Trust. The Distributor shall have no duty to inquire into or liability for
the accuracy of the net asset value per Share as calculated.
c. Upon receipt of purchase instructions, the Distributor shall transmit
such instructions to the Trust or its transfer agent for registration of the
Shares purchased.
d. The Distributor shall also have the right to take, as agent for the
Trust, all actions which, in the Distributor's judgment, are necessary to effect
the distribution of Shares, in accordance with the Trust's policies, procedures
and disclosure documents.
e. Nothing in this Agreement shall prevent the Distributor or any
"affiliated person" from buying, selling or trading any securities for its or
their own account or for the accounts of others for whom it or they may be
acting; provided, however, that the Distributor expressly agrees that it shall
not for its own account purchase any Shares of the Trust except for investment
purposes and that it shall not for its own account sell any such Shares except
for redemption of such Shares by the Trust, and that it shall not undertake
activities which, in its judgment, would adversely affect the performance of its
obligations to the Trust under this Agreement.
f. The Distributor, as agent for the Trust, shall repurchase Shares at such
prices and upon such terms and conditions as shall be specified in the
Prospectus.
g. The Trust will remit to the Distributor any contingent deferred sales
charges imposed on redemptions or repurchases of Series shares upon the terms
and conditions set forth in the then current prospectus of the Trust
4. DISTRIBUTION SUPPORT SERVICES. In addition to the sale and repurchase of
Shares, the Distributor shall perform distribution support services. Such
distribution support services shall include: (i) review of sales and marketing
literature, prepared and authorized by the Trust's Adviser, and submit and file
such materials with the NASD, as necessary; (ii) compliance with NASD record
keeping requirements; (iii) prepare quarterly reports to the Trust's Board of
Directors and (iv) licensing Adviser or Trust personnel as registered
representatives of the Distributor and related supervisory activities.
5. REASONABLE COMMERCIAL EFFORTS. The Distributor shall use all reasonable
commercial efforts in connection with the distribution of Shares. The
Distributor shall have no obligation to sell any specific number of Shares and
shall only sell Shares against orders received therefore. The Trust shall retain
the right to refuse at any time to sell any of its Shares for any reason deemed
adequate by it.
6. COMPLIANCE. In furtherance of the distribution services being provided
hereunder, the Distributor and the Trust agree as follows:
a. The Distributor shall comply with the Rules of Fair Practice of the NASD
and the securities laws of any jurisdiction in which the Funds are sold,
directly or indirectly.
b. The Distributor shall require each dealer with whom it has a selling
agreement to conform to the applicable provisions of the Trust's most current
Prospectus and Statement of Additional Information, with respect to the public
offering price of the Shares.
c. The Trust agrees to furnish to the Distributor sufficient copies of any
agreements, plans, communications with the public or other materials it intends
to use in connection with any sales of Shares in a timely manner in order to
allow the Distributor to review, approve and file such materials with the
appropriate regulatory authorities and obtain clearance for use. The Trust
agrees not to use any such materials until so filed and cleared for use by
appropriate authorities and/or the Distributor.
d. The Distributor, at its own expense, shall qualify as a broker or dealer
under all applicable Federal or state laws required to permit Shares to be sold
in such states as shall be mutually agreed upon by the parties; provided,
however that the Distributor shall have no obligation to register as a broker or
dealer under the Blue Sky Laws of any jurisdiction if it determines that
registering or maintaining registration in such jurisdiction would be
uneconomical.
e. The Distributor shall not, in connection with any sale or solicitation
of a sale of the Shares, make or authorize any representative, service
organization, broker or dealer to make, any representations concerning the
Shares except those contained in the Trust's most current Prospectus covering
the Shares and in communications with the public or sales materials approved by
the Distributor as information supplemental to such Prospectus.
7. EXPENSES. Expenses shall be allocated as follows:
a. The Trust shall bear the following expenses: preparation, setting in
type, and printing of sufficient copies of the Prospectus and Statement of
Additional Information for distribution to existing shareholders; preparation
and printing of reports and other communications to existing shareholders;
distribution of copies of the Prospectus, Statement of Additional Information
and all other communications to existing shareholders; registration of the
Shares under the Federal securities laws; qualification of the Shares for sale
in the jurisdictions mutually agreed upon by the Trust and the Distributor;
transfer agent/shareholder servicing agent services; supplying information,
prices and other data to be furnished by the Trust under this Agreement; and any
original issue taxes or transfer taxes applicable to the sale or delivery of the
Shares or certificates.
b. The Adviser shall pay all other expenses incident to the sale and
distribution of the Shares sold hereunder, including, without limitation:
printing and distributing copies of the Prospectus, Statement of Additional
Information and reports prepared for use in connection with the offering of
Shares for sale to the public; advertising in connection with such offering,
including public relations services, sales presentations, media charges,
preparation, printing and mailing of advertising and sales literature; data
processing necessary to support a distribution effort; distribution and
shareholder servicing activities of broker-dealers and other financial
institutions; filing fees required by regulatory authorities for sales
literature and advertising materials; any additional out-of-pocket expenses
incurred in connection with the foregoing and any other costs of distribution.
8. COMPENSATION. For the distribution and distribution support services provided
by the Distributor pursuant to the terms of the Agreement, the Trust shall
reimburse the Distributor for its out-of-pocket expenses related to the
performance of their duties hereunder, including, without limitation,
telecommunications charges, postage and delivery charges, record retention
costs, reproduction charges and traveling and lodging expenses incurred by
officers and employees of the Distributor. All rights of reimbursement under
this Agreement for expenses incurred by the Distributor as of the termination
date shall survive the termination of this Agreement. The parties acknowledge
that the Distributor will receive no compensation, other than expense
reimbursement, for distribution services rendered.
9. USE OF DISTRIBUTOR'S NAME. The Trust shall not use the name of the
Distributor nor any of affiliates in the Prospectus, Statement of Additional
Information, sales literature or other material relating to the Trust in a
manner not approved prior thereto in writing by the Distributor; provided,
however, that the Distributor shall approve all uses of its and its affiliates'
names that merely refer in accurate terms to their appointments or that are
required by the Securities and Exchange Commission (the "SEC") or any state
securities commission; and further provided, that in no event shall such
approval be unreasonably withheld.
10. USE OF TRUSTS NAME. The Distributor nor any of its affiliates shall use the
name of the Trust or material relating to the Trust on any forms (including any
checks, bank drafts or bank statements) for other than internal use in a manner
not approved prior thereto in writing by the Trust; provided, however, that the
Trust shall approve all uses of its name that merely refer in accurate terms to
the appointment of the Distributor hereunder or that are required by the SEC or
any state securities commission; and further provided, that in no event shall
such approval be unreasonably withheld.
11. LIABILITY OF DISTRIBUTOR. The duties of the Distributor shall be limited to
those expressly set forth herein, and no implied duties are assumed by or may be
asserted against the Distributor. The Distributor may, in connection with this
Agreement employ agents or attorneys in fact, and shall not be liable for any
loss arising out of or in connection with its actions under this Agreement, so
long as it acts in good faith and with due diligence, and is not grossly
negligent or guilty of any willful misfeasance, bad faith, or reckless disregard
of its obligations and duties under this Agreement, as used in this Section 11
and in Section 12 (except the second paragraph of Section 12), the term
"Distributor" shall include directors, officers, employees and other agents of
the Distributor.
12. INDEMNIFICATION OF DISTRIBUTOR. Any director, officer, employee, shareholder
or agent of a Distributor who may be or become an officer, Trustee, employee or
agent of the Trust, shall be deemed, when rendering services to the Trust or
acting on any business of the Trust (other than services or business in
connection with the Distributor's duties hereunder), to be rendering such
services to or acting solely for the Trust and not as a director, officer,
employee, shareholder or agent, or one under the control or direction of the
Distributor, even though receiving a salary from the Distributor.
The Trust agrees to indemnify and hold harmless the Distributor, and each
person, who controls the Distributor within the meaning of Section 15 of the
1933 Act, or Section 20 of the Securities Exchange Act of 1934, as amended ("
1934 Act"), against any and all liabilities, losses, damages, claims and
expenses, joint or several (including, without limitation, reasonable attorneys'
fees and disbursements and investigation expenses incident thereto) to which it,
or any of them, may become subject under the 1933 Act, the 1934 Act, the 1940
Act or other Federal or state laws or regulations, at common law or otherwise,
insofar as such liabilities, losses, damages, claims and expenses (or actions,
suits or proceedings in respect thereof) arise out of or relate to any untrue
statement or alleged untrue statement of a material fact contained in a
Prospectus, Statement of Additional Information, supplement thereto, sales
literature or other written information prepared by the Trust and provided by
the Trust to the Distributor for the Distributor's use hereunder, or arise out
of or relate to any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Distributor (or any person controlling the Distributor)
shall not be entitled to indemnity hereunder for any liabilities, losses,
damages, claims or expenses (or actions, suits or proceedings in respect
thereof) resulting from (i) an untrue statement or omission or alleged untrue
statement or omission made in the Prospectus, Statement of Additional
Information, or supplement, sales or other literature, in reliance upon and in
conformity with information furnished in writing to the Trust by the Distributor
specifically for use therein or (ii) the Distributor's own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties and obligations
in the performance of this Agreement.
The Distributor agrees to indemnify and hold harmless the Trust, and each
person who controls the Trust within the meaning of Section 15 of the 1933 Act,
or Section 20 of the 1934 Act, against any and all liabilities, losses, damages,
claims and expenses, joint or several (including, without limitation reasonable
attorneys' fees and disbursements and investigation expenses incident thereto)
to which it, or any of them, may become subject under the 1933 Act, the 1934
Act, the 1940 Act or other Federal or state laws, at common law or otherwise,
insofar as such liabilities, losses, damages, claims or expenses arise out of or
relate to any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or Statement of Additional Information or any
supplement thereto, sales literature or other written material, or arise out of
or relate to actions or oral representations of the Distributor's associated
persons and to any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if based upon information furnished in writing to the Trust by the
Distributor specifically for use therein.
13. ADVISER PERSONNEL. The Adviser agrees that only its employees who are
registered representatives of the Distributor ("dual employees") or registered
representatives of another NASD member firm shall offer or sell Shares of the
Funds. The Adviser further agrees that the activities of any such employees as
registered representatives of the Distributor shall be limited to offering and
selling Shares. If there are dual employees, one employee of the Adviser shall
register as a principal of that the Distributor and assist the Distributor in
monitoring the marketing and sales activities of the dual employees.
14. DURATION. This Agreement shall become effective as of the date first above
written, and shall remain in effect for one year from such date.
15. TERMINATION. Notwithstanding Section 14 above:
a. This Agreement shall terminate automatically in the event of its
assignment.
b. This Agreement shall terminate at any time upon a vote of the majority
of the Trustees who are not interested persons of the Trust or by a vote of the
majority of the outstanding voting securities of each Fund, upon not less than
60 days prior written notice to the Distributor.
16. AMENDMENT. The terms of this Agreement shall not be waived, altered,
modified, amended or supplemented in any manner whatsoever except by a written
instrument signed by the Distributor and the Trust and shall not become
effective unless its terms have been approved by the majority of the Trustees of
the Trust or by a "vote of majority of the outstanding voting securities" of
each Fund and by a majority of those Trustees who are not "interested persons"
of the Trust or any party to this Agreement.
17. NON-EXCLUSIVE SERVICES. The services of the Distributor rendered to the
Trust are not exclusive. The Distributor may render such services to any other
investment company.
18. DEFINITIONS. As used in this Agreement, the terms "vote of a majority of the
outstanding voting securities," "assignment," "interested person" and
"affiliated person" shall have the respective meanings specified in the 1940 Act
and the rules enacted thereunder as now in effect or hereafter amended.
19. CONFIDENTIALITY. The Distributor shall treat confidentially and as
proprietary information of the Trust all records and other information relating
to the Trust and prior, present or potential shareholders and shall not use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except as may be required by
administrative or judicial tribunals or as requested by the Trust.
20. NOTICE. All notices required under this Agreement shall be given in writing,
addressed and delivered, or mailed postage prepaid, to the other parties at the
principal office of each party.
21. GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with the laws of the State of Massachusetts and the applicable provisions of the
federal securities laws. To the extent that the applicable law of the State of
Massachusetts or any of the provisions herein conflict with the applicable
provisions of the federal securities laws, the latter shall control.
22. ENTIRE AGREEMENT. This Agreement (including the Exhibits attached hereto)
contains the entire agreement and understanding of the parties and supersedes
all prior written or oral agreements and understandings.
23. LIMITATION OF LIABILITY. The term "ICON Funds" means and refers to the
Trustees from time to time serving under the Master Trust Agreement of the Trust
dated September 19, 1996, as amended from time to time. It is expressly agreed
that obligations of the Trust hereunder shall not be binding upon any Trustee,
Shareholder, nominees, officers, agents or employees of the Trust, personally,
but bind only the assets and property of the Trust. The executive and delivery
of this Agreement have been authorized by the Trustees of the Trust and signed
by an authorized officer of the Trust, acting as such and neither such
authorization nor such execution and delivery shall be deemed to have been made
by any of them individually or to impose any liability on any of them
personally, but shall bind only the assets of the property of the Trust.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
ICON FUNDS ICON DISTRIBUTORS, INC.
By: By:
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ICON ADVISERS, INC.
By:
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