ICON FUNDS
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement"), dated as of December
1, 1998, is between the ICON Funds (the "Trust"), a Massachusetts business
trust, Meridian Investment Management Corporation (the "Adviser"), a Colorado
corporation, and Meridian Clearing Corporation ("MCC"), 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
itsshares 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 "Portfolio" or "Portfolios"). The Adviser has been appointed investment
adviser to the Portfolios of the Trust. MCC 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
enter into this Agreement pursuant to which the Distributor will provide
distribution services to the Portfolios of the Trust identified on Schedule
A, as may be amended from time to time. The Fund desires to
retain MCC 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 MCC, intending to be legally bound
hereby, agree as follows:
1. APPOINTMENT OF DISTRIBUTOR. The Trust hereby appoints MCC as Distributor
for the distribution of the Trust's Shares, and MCC 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-1A, 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 therefor at the public offering price, which shall be the net
asset value of the Shares then in effect.
b. 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.
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: review of sales and marketing
literature and submission to the NASD; NASD record keeping; quarterly reports
to the Trust's Board of Directors and licensing Adviser or Trust personnel as
registered representatives of the Distributor and related supervisory
activities.
5. REASONABLE EFFORTS. The Distributor shall use all reasonable 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 therefor. 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 it sells, directly or
indirectly, Shares.
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 the sale of
Shares 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 TRUST'S 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 negligent or guilty of any willful misfeasance, bad faith or gross
negligence, 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 Portfolios. 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. The
Adviser shall maintain errors and omissions and fidelity bond insurance
policies providing
reasonable coverage for its employees' activities and shall provide copies of
such policies
to the Distributor. The Adviser shall indemnify and hold harmless the
Distributor against
any and all liabilities, losses, damages, claims and expenses (including
reasonable attorneys'
fees and disbursements and investigation costs incident thereto) arising from
or related to
the Adviser's employees' activities as registered representatives,
including, without
limitation, any and all such liabilities, losses, damages, claims and expenses
arising from or
related to the breach by such employees of any rules or regulations of the
NASD or SEC.
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. Nothwithstanding 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 Portfolio, 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 Portfolio 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 execution 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 and 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 MERIDIAN CLEARING CORPORATION
By: __/s/_____________________ By: __/s/___________________________
Xxxx Xxxxxx, Chief Financial Officer Xxxxxxx Xxxx Xxxx, Assistant Secretary
MERIDIAN INVESTMENT MANAGEMENT CORPORATION
By: __/s/______________________________
Xxxxx X. Xxxxxxxx, President
SCHEDULE A
ICON FUNDS
Portfolios covered by Distribution Agreement:
ICON Basic Materials Fund ICON Asia Region Fund
ICON Capital Goods Fund ICON South Pacific
Region Fund
ICON Consumer Cyclicals Fund ICON North Europe
Region Fund
ICON Consumer Staples Fund ICON South Europe Region
Fund
ICON Energy Fund ICON Western Hemisphere
Fund
ICON Financial Services Fund
ICON Healthcare Fund
ICON Leisure Fund
ICON Technology Fund
ICON Telecommunication & Utilities Fund
ICON Transportation Fund
ICON Short-Term Fixed Income Fund
