Appointment as Distributor. (a) The Trust hereby appoints BISYS as the exclusive Distributor and representative of the Trust to act as agent for the sale and distribution of Shares of each Series described in the currently effective prospectuses (hereinafter referred to as "Prospectuses" or a "Prospectus") and registration statement ("Registration Statement") of the Trust. The Trust during the term of this Agreement shall sell its Shares through BISYS upon the terms and conditions set forth below. (b) BISYS shall use its best efforts to solicit orders for the sale of Shares. It is contemplated that BISYS will enter into sales or servicing agreements with securities dealers, financial institutions and other industry professionals, such as investment advisers, accountants and estate planning firms, and in so doing will act only on its own behalf as principal. No securities dealer or other person who enters into a servicing agreement with BISYS shall be authorized to act as an agent for the Trust or its Series in connection with the offering or sale of Shares to the public or otherwise. (c) BISYS shall prepare or review, provide advice with respect to, and file with the federal and state agencies or other organizations as required by federal, state, and other applicable laws and regulations, all sales literature (advertisements, brochures and shareholder communications) for each of the Series and any classes of Shares thereof. (d) In the event that the Trust establishes one or more additional investment portfolios other than the Series with respect to which it desires to retain BISYS to act as the exclusive Distributor and representative hereunder, the Trust shall notify BISYS in writing. If BISYS is willing to render such services it shall notify the Trust in writing whereupon, subject to such approval as may be required pursuant to Section 13 hereof, or any necessary regulatory or shareholder approvals, such portfolio shall become a Series hereunder and the compensation payable by such new Series to BISYS will be as agreed in writing at the time.
Appears in 2 contracts
Samples: Distribution Agreement (Pegasus Variable Annuity Fund), Distribution Agreement (Pegasus Funds)
Appointment as Distributor. (a) The Trust Fund hereby appoints BISYS as the exclusive Distributor and representative of the Trust to act as agent for the sale and distribution its principal distributor of Shares of each Series described in the currently effective prospectuses (hereinafter referred to as "Prospectuses" or a "Prospectus") and registration statement ("Registration Statement") of the Trust. The Trust during the term of this Agreement shall sell its jurisdictions wherein Shares through BISYS upon the terms and conditions set forth belowmay legally be offered for sale.
(b) BISYS The Distributor accepts such appointment as principal distributor and agrees to render such services and to assume the obligations herein set forth for the compensation herein provided. The Distributor shall for all purposes herein provided unless otherwise specified be deemed to be an independent contractor and, unless expressly provided herein or otherwise authorized, shall have no authority to act for or represent the Fund in any way. The Distributor, by separate agreement with the Fund, may also serve the Fund in other capacities. The services of the Distributor to the Fund under this Agreement are not to be deemed exclusive, and the Distributor shall be free to render similar services or other services to others so long as its services hereunder are not impaired thereby. The Distributor represents that it is registered with the Commission as a broker or dealer under Section 15 of the Securities Exchange Act of 1934, as amended, and a member in good standing of the National Association of Securities Dealers, Inc. (the "NASD").
(c) In carrying out its duties and responsibilities hereunder, the Distributor may, pursuant to separate written contracts, delegate its responsibilities as distributor to various brokers, dealers or other financial intermediaries selected by it as selling agents (each, a "Selling Agent") to provide advertising, promotion and other distribution services contemplated hereunder directly to or for existing and potential shareholders who may be clients of such Selling Agents; provided that the Distributor will not delegate its duties to any Selling Agent that is not authorized to distribute Shares under applicable law. Such Selling Agents shall at all times be deemed to be independent contractors retained by the Distributor and not the Fund.
(d) The Distributor shall use its best efforts with reasonable promptness to solicit sell such authorized Shares of the Fund remaining unissued as from time to time shall be effectively registered under the 1933 Act and offered by the Fund, at prices determined as hereinafter provided and on terms hereinafter set forth, all subject to applicable federal and state laws and regulations and to the Fund's Registration Statement and the amended and restated agreement and declaration of trust ("Agreement and Declaration of Trust") and by-laws ("By-Laws") of the Fund; provided, however, that the Distributor may in its discretion refuse to accept orders for Shares from any particular prospective investor. Without limiting the sale foregoing, the Distributor agrees to sell Shares only to investors who are "Qualified Clients" as that term is defined in the Prospectus, and to impose this requirement as a condition of the sales activity of any Selling Agent with whom the Distributor enters into a master selling and servicing agreement or other selling group arrangement with respect to the Shares.
(e) The Distributor shall sell Shares only to investors or through qualified Selling Agents in such manner not inconsistent with the provisions hereof, the Fund's Registration Statement and any master selling and servicing agreement as the Distributor may determine from time to time. Whenever the Distributor sells Shares directly to investors, the Distributor will provide the shareholder services as set forth in the Registration Statement and as contemplated by the terms of any master selling and servicing agreement or other selling group arrangement with respect to the Shares. It is contemplated that BISYS will enter into sales or servicing agreements with securities dealers, financial institutions and other industry professionals, such as investment advisers, accountants and estate planning firms, and in so doing will act only on its own behalf as principal. No securities dealer Selling Agent or other person who enters into a servicing agreement with BISYS shall be appointed or authorized to act as an agent for the Trust or its Series in connection with the offering or sale of Shares to the public or otherwise.
(c) BISYS shall prepare or review, provide advice with respect to, and file with the federal and state agencies or other organizations as required by federal, state, and other applicable laws and regulations, all sales literature (advertisements, brochures and shareholder communications) for each of the Series and any classes Fund without the prior consent of Shares thereofthe Fund.
(d) In the event that the Trust establishes one or more additional investment portfolios other than the Series with respect to which it desires to retain BISYS to act as the exclusive Distributor and representative hereunder, the Trust shall notify BISYS in writing. If BISYS is willing to render such services it shall notify the Trust in writing whereupon, subject to such approval as may be required pursuant to Section 13 hereof, or any necessary regulatory or shareholder approvals, such portfolio shall become a Series hereunder and the compensation payable by such new Series to BISYS will be as agreed in writing at the time.
Appears in 2 contracts
Samples: Distribution Agreement (Advantage Advisers Multi - Sector Fund I), Distribution Agreement (Advantage Advisers Multi - Sector Fund I)
Appointment as Distributor. (a) The Trust Fund hereby appoints BISYS as the exclusive Distributor and representative of the Trust to act as agent for the sale and distribution its principal distributor of Shares of each Series described in the currently effective prospectuses (hereinafter referred to as "Prospectuses" or a "Prospectus") and registration statement ("Registration Statement") of the Trust. The Trust during the term of this Agreement shall sell its jurisdictions wherein Shares through BISYS upon the terms and conditions set forth belowmay legally be offered for sale.
(b) BISYS The Distributor accepts such appointment as principal distributor and agrees to render such services and to assume the obligations herein set forth for the compensation herein provided. The Distributor shall for all purposes herein provided unless otherwise specified be deemed to be an independent contractor and, unless expressly provided herein or otherwise authorized, shall have no authority to act for or represent the Fund in any way. The Distributor, by separate agreement with the Fund, may also serve the Fund in other capacities. The services of the Distributor to the Fund under this Agreement are not to be deemed exclusive, and the Distributor shall be free to render similar services or other services to others so long as its services hereunder are not impaired thereby. The Distributor represents that it is a registered security dealer and a member in good standing of the National Association of Securities Dealers, Inc.
(c) In carrying out its duties and responsibilities hereunder, the Distributor may, pursuant to separate written contracts, delegate its responsibilities as distributor to various brokers or dealers selected by it as a selling agent (each, a "Selling Agent") to provide advertising, promotion and other distribution services contemplated hereunder directly to or for existing and potential shareholders who may be clients of such Selling Agents. Such Selling Agents shall at all times be deemed to be independent contractors retained by the Distributor and not the Fund.
(d) During any period that the Fund is conducting an offering of Shares, including during the Initial Offering, the Distributor shall use its best efforts with reasonable promptness to solicit sell such authorized Shares of the Fund remaining unissued as from time to time shall be effectively registered under the 1933 Act and offered by the Fund, at prices determined as hereinafter provided and on terms hereinafter set forth, all subject to applicable federal and state laws and regulations and to the Fund's then currently effective Registration Statement (which shall include the prospectus and the statement of additional information and any supplements or amendments thereto) and the Fund's organizational documents; provided, however, that the Distributor may in its discretion refuse to accept orders for Shares from any particular prospective investor. Without limiting the sale of Shares. It foregoing, the Distributor agrees to sell Shares only to investors who are "Qualified Clients" as that term is contemplated that BISYS will enter into sales or servicing agreements with securities dealers, financial institutions and other industry professionals, such as investment advisers, accountants and estate planning firmsdefined in the Prospectus, and to impose this requirement as a condition of the sales activity of any Selling Agent with whom the Distributor enters into a master selling and servicing agreement or other selling group arrangement with respect to the Shares.
(e) The Distributor shall sell Shares only to investors or through qualified Selling Agents in so doing will act only on its own behalf such manner not inconsistent with the provisions hereof, the Fund's then currently effective Registration Statement and any master selling and servicing agreement as principal. No securities dealer the Distributor may determine from time to time[, provided that no Selling Agent or other person who enters into a servicing agreement with BISYS shall be appointed or authorized to act as an agent for the Trust or its Series in connection with the offering or sale of Shares to the public or otherwise.
(c) BISYS shall prepare or review, provide advice with respect to, and file with the federal and state agencies or other organizations as required by federal, state, and other applicable laws and regulations, all sales literature (advertisements, brochures and shareholder communications) for each of the Series and any classes Fund without the prior consent of Shares thereofthe Fund].
(d) In the event that the Trust establishes one or more additional investment portfolios other than the Series with respect to which it desires to retain BISYS to act as the exclusive Distributor and representative hereunder, the Trust shall notify BISYS in writing. If BISYS is willing to render such services it shall notify the Trust in writing whereupon, subject to such approval as may be required pursuant to Section 13 hereof, or any necessary regulatory or shareholder approvals, such portfolio shall become a Series hereunder and the compensation payable by such new Series to BISYS will be as agreed in writing at the time.
Appears in 1 contract
Samples: Distribution Agreement (Advantage Advisers Multi - Sector Fund I)
Appointment as Distributor. Agreement of Distributor; ----------------------------------------------------- Solicitations.
(a) The Trust hereby Subject to the terms and conditions stated herein, the ------------- Company herein appoints BISYS the Distributor as the exclusive Distributor and representative an agent of the Trust Company for the purpose of soliciting or receiving offers to purchase the Notes from the Company by others. The Company expressly reserves the right, upon fifteen business days' prior written notice to the Distributor, to appoint other persons, partnerships or corporations ("Additional Distributors") to act as its agent to solicit offers for the sale purchase of Notes; provided, however, that each -------- ------- Additional Distributor shall either execute this Agreement and become a party hereto or shall enter into a distribution of Shares of each Series described in agreement with the currently effective prospectuses (hereinafter referred Company on terms substantially similar to as "Prospectuses" or a "Prospectus") and registration statement ("Registration Statement") of the Trust. The Trust during those contained herein; thereafter the term of Distributor as used in this Agreement shall mean the Distributor and each such Additional Distributor. The Company expressly reserves the right to sell its Shares through BISYS at any time any Notes in a firm commitment underwriting pursuant to an underwriting agreement that does not provide for a continuous offering of such Notes, or to place the Notes itself privately without notice to the Distributor and without any opportunity for the Distributor to solicit offers for the purchase of the Notes. In either such event, no commission will be payable to the Distributor in respect of such Notes pursuant to this Agreement.
(b) On the basis of the representations and warranties contained herein, but subject to the terms and conditions herein set forth, the Distributor agrees, as an agent of the Company, to use reasonable efforts when requested by the Company to solicit offers to purchase the Notes upon the terms and conditions set forth below.
in the Prospectus, as from time to time amended or supplemented. In placing any Notes pursuant to an offer accepted by the Company, the Distributor that solicited or received such offer may act as agent or purchase such Notes from the Company as principal for resale. Upon acceptance by the Company of an offer to purchase Notes, the Distributor and the Company may exchange written confirmations and, if the Distributor is purchasing the Notes as principal, the Distributor will complete either (bi) BISYS shall use its best efforts to solicit orders for standard form of confirmation or (ii) a Terms Agreement substantially in the sale form of Shares. It is contemplated that BISYS will enter into sales or servicing agreements with securities dealers, financial institutions and other industry professionals, such as investment advisers, accountants and estate planning firms, Exhibit A hereto (a "Terms Agreement") and in so doing will act only on its own behalf as principal. No securities dealer such event shall transmit the same to the Company by facsimile or other person who enters into a servicing agreement similar means of telecommunication. Upon receipt of notice from the Company as contemplated by Section 4(b) hereof, the Distributor will suspend its solicitation of offers to purchase Notes until such time as the Company shall have furnished it with BISYS shall be authorized to act as an agent for the Trust amendment or its Series in connection with the offering or sale of Shares supplement to the public Registration Statement or otherwise.
(c) BISYS shall prepare or reviewthe Prospectus, provide advice with respect to, and file with the federal and state agencies or other organizations as required by federal, state, and other applicable laws and regulations, all sales literature (advertisements, brochures and shareholder communications) for each of the Series and any classes of Shares thereof.
(d) In the event that the Trust establishes one or more additional investment portfolios other than the Series with respect to which it desires to retain BISYS to act as the exclusive case may be, contemplated by Section 4(b) and shall have advised the Distributor and representative hereunder, the Trust shall notify BISYS in writing. If BISYS is willing to render that such services it shall notify the Trust in writing whereupon, subject to such approval as solicitation may be required pursuant to Section 13 hereof, or any necessary regulatory or shareholder approvals, such portfolio shall become a Series hereunder and the compensation payable by such new Series to BISYS will be as agreed in writing at the timeresumed.
Appears in 1 contract
Samples: Distribution Agreement (Rochester Gas & Electric Corp)
Appointment as Distributor. (a) The Trust hereby appoints BISYS as the exclusive Distributor and representative of the Trust 1.01 Subject to act as agent for the sale and distribution of Shares of each Series described in the currently effective prospectuses (hereinafter referred to as "Prospectuses" or a "Prospectus") and registration statement ("Registration Statement") of the Trust. The Trust during the term of this Agreement shall sell its Shares through BISYS upon the terms and conditions set forth belowin this Agreement, the Company hereby appoints the Distributor as a distributor in the territories as set out in Schedule “B” hereto, subject to the required applications for approval and registration of the Products being submitted by the Distributor (the "Territory"), to purchase from the Company for resale in the Territory those particular products of the Company described in Schedule “A” hereto (the “Products”).
1.02 The Distributor accepts such appointment and agrees as follows:
(a) To use its best commercial efforts to develop the market for the Product in the Territory and to engage sufficient personnel in said territory to aggressively promote the sale of the Product throughout the Territory.
(b) BISYS shall use its best efforts to solicit orders for To become familiar with the sale characteristics and purposes of Shares. It is contemplated that BISYS will enter into sales or servicing agreements with securities dealers, financial institutions and other industry professionals, such as investment advisers, accountants and estate planning firmsthe Products, and in so doing will act only on its own behalf as principal. No securities dealer or other person who enters into a servicing agreement with BISYS shall the markets for which they are intended to be authorized used, and to act as an agent for the Trust or its Series diligently review all product information in connection with the offering or sale of Shares Product which may be issued to the public or otherwiseDistributor from time to time.
(c) BISYS shall prepare or review, provide advice with respect to, To conform faithfully to the Company's sales plans and file with the federal and state agencies or other organizations as required by federal, state, and other applicable laws and regulations, all sales literature (advertisements, brochures and shareholder communications) for each of the Series and any classes of Shares thereofpolicies.
(d) In To refrain from entering into or knowingly directly or indirectly facilitating the event sale or resale of any Products outside of the Territory.
(e) To refrain from selling or offering for sale any items manufactured by others which are similar or functionally the same as the Products and which would reasonably be seen as being competitive to the Products.
(f) To comply with any and all laws, regulations and governmental orders of the Territory that may be applicable to the sale and distribution of the merchandise purchased by the Distributor from the Company.
(g) To indemnify the Company and hold it harmless from and against any and all claims, suits, proceedings, judgments, orders, fines or penalties arising in connection with the conduct of the Distributor’s business and the resale of Products by the Distributor except for such claims arising out of Company's sole negligent or intentional wrongful acts or omissions.
1.03 The appointment of the Distributor shall be exclusive for the sale of the Products during the Initial Term of this Agreement (as defined in Paragraph 6 below), and shall continue to be exclusive during any extension of this Agreement beyond the Initial Term PROVIDED that the Trust establishes one Distributor meets the Minimum Purchase Obligations set out in Paragraph 3 below.
1.04 The Distributor expressly acknowledges and agrees that it is not an agent of Company and shall not at any time represent itself as such, nor shall the Distributor incur, assume or more additional investment portfolios create any debt, obligation, contract or release of any kind in the name of or on behalf of Company.
1.05 All trademarks, copyrights, trade names and other than the Series proprietary rights in and with respect to which it desires to retain BISYS to act as the Company's products and services, are and will remain the exclusive property of Company. Nothing herein shall be deemed to constitute a license to the Distributor and representative hereunder, to use the Trust shall notify BISYS Company's trademarks in writing. If BISYS is willing to render such services it shall notify connection with its business in the Trust in writing whereupon, subject to such approval as may be required pursuant to Section 13 hereof, or any necessary regulatory or shareholder approvals, such portfolio shall become a Series hereunder and the compensation payable by such new Series to BISYS will be as agreed in writing at the timeTerritory.
Appears in 1 contract
Samples: Distributorship Agreement (ALDA Pharmaceuticals Corp.)
Appointment as Distributor. 2.01 Appointment as Exclusive Distributor. (a) The Trust hereby MANUFACTURER appoints BISYS DISTRIBUTOR as an independent EXCLUSIVE AUTHORIZED DISTRIBUTOR within the exclusive Distributor and representative Territory (as defined in Schedule A herein) for 1) the sale of the Trust to act as agent Products for the sale and distribution of Shares of each Series described use in the currently effective prospectuses (hereinafter referred conversion of gasoline or diesel fueled vehicles to as "Prospectuses" or use Alternative Fuel, 2) conversion of new vehicles and/or engines manufactured by OEMs to operate on Alternative Fuel providing such conversion utilizes a "Prospectus"complete conversion system supplied by DISTRIBUTOR and 3) and registration statement ("Registration Statement") of for service replacements in the Trust. The Trust during the term of general Alternative Fuel aftermarket; and, DISTRIBUTOR hereby accepts this Agreement shall sell its Shares through BISYS appointment, upon the terms and conditions hereinafter set forth belowherein. For this purpose, MANUFACTURER hereby grants to DISTRIBUTOR the exclusive, limited and non-transferable right and license to market, resell and distribute the Products 1) directly to automotive OEMs for use in their manufactured vehicles operating on Alternative Fuel providing such conversion utilizes a complete conversion system supplied by DISTRIBUTOR and 2) for service replacements in the general Alternative Fuel aftermarket in the Territory, and 3) to its sub-distributors or agents for the same conditions. DISTRIBUTOR will not market, sell or distribute any Product outside of the Territory, and will use its best efforts to ensure that any Product sold by DISTRIBUTOR will not be re-sold outside of the territory. All orders or direct inquiries received by MANUFACTURER with respect to the sale of any Product in the Territory for the applications herein will be referred by MANUFACTURER to DISTRIBUTOR. All orders or direct inquiries received by DISTRIBUTOR with respect to the sale of any Product outside the Territory will be referred by DISTRIBUTOR to MANUFACTURER.
(a) MANUFACTURER hereby grants to DISTRIBUTOR the exclusive, limited and non-transferable right and license to market, resell and distribute the Products (as delineated in Schedule B hereto) to the high performance and racing markets in the Territory.
(b) BISYS shall use its best efforts MANUFACTURER hereby grants to solicit orders DISTRIBUTOR, on a non-exclusive basis, the limited and non-transferable right and license to market, resell and distribute the Products as shown on Schedule B for the sale all vehicle and/or engine applications, regardless of Shares. It is contemplated that BISYS will enter into sales or servicing agreements with securities dealers, financial institutions and other industry professionals, such as investment advisers, accountants and estate planning firms, and in so doing will act only on its own behalf as principal. No securities dealer or other person who enters into a servicing agreement with BISYS shall be authorized to act as an agent for the Trust or its Series in connection with the offering or sale of Shares to the public or otherwisefuel type.
(c) BISYS shall prepare This Agreement only authorizes DISTRIBUTOR to resell Products originally sold to DISTRIBUTOR by MANUFACTURER. The sales of, or reviewoffer to sell, provide advice with respect to, and file with Products to DISTRIBUTOR by MANUFACTURER does not cover any other right to manufacture or modify the federal and state agencies or other organizations as required by federal, state, and other applicable laws and regulations, all sales literature (advertisements, brochures and shareholder communications) for each of the Series and any classes of Shares thereofProducts.
(d) In MANUFACTURER shall notify DISTRIBUTOR promptly every time it comes to its attention that sales of the event that Product are being made in the Trust establishes one or more additional investment portfolios Territory by persons other than the Series with respect DISTRIBUTOR or purchasers from DISTRIBUTOR and, at DISTRIBUTOR's request and expense, shall take all steps, including litigation, as are necessary to which prevent such sales or as it desires considers reasonable to retain BISYS protect the rights granted to act as the exclusive Distributor and representative hereunder, the Trust shall notify BISYS in writingDISTRIBUTOR. If BISYS is willing to render such services it shall notify the Trust in writing whereupon, subject to such approval as may be required pursuant to Section 13 hereof, or any necessary regulatory or shareholder approvals, such portfolio shall become a Series hereunder and the compensation payable by such new Series to BISYS will be as agreed in writing at the timeThis excludes OEMs except those already purchasing Alternative Fuel conversion equipment from DISTRIBUTOR.
Appears in 1 contract
Samples: Distribution Agreement (Enerpulse Technologies, Inc.)