Distribution Services. Subject to the direction and control of the Trust's Board of Trustees (the "Board"), the Distributor shall serve as distributor of the Shares. (a) As agent of and sole distributor for the Trust, Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to the Trust for acceptance and shall not be binding on the Trust until accepted by it. Distributor shall have no authority to make binding subscriptions on behalf of the Trust. The Trust reserves the right to sell Shares directly to investors through subscriptions received by the Trust. Distributor's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereof, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions or any other offering by the Trust of securities to its shareholders. (b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust promptly all subscriptions placed with Distributor. The Trust shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust and Shares as Distributor may reasonably request. The Trust shall supply Distributor with such copies of the Prospectus as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust or have any rights under this Agreement. (c) The Trust reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor shall cease to offer shares of stock. (d) The Trust and Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust shall be responsible for payment of all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification. (e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the Trust's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. (f) The Trust will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of Shares. (g) Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g). (h) The Trust shall advise Distributor immediately: (i) of any request by the Commission for amendments to the Trust's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
Appears in 3 contracts
Samples: Distribution Agreement (Cutler Trust), Distribution Agreement (Cutler Trust), Distribution Agreement (Cutler Trust)
Distribution Services. Subject to the direction and control of the Trust's Board board of Trustees trustees of the Trust (the "Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the Trust, the Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by the Distributor shall be directed to the Trust for acceptance and shall not be binding on the Trust until accepted by it. The Distributor shall have no authority to make binding subscriptions on behalf of the Trust. The Trust reserves the right to sell Shares directly to investors through subscriptions received by the Trust. The Distributor's rights hereunder shall not apply to Shares issued in connection with (ai) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereof, (bii) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (ciii) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions or any other offering by the Trust of securities to its shareholders.
(b) The Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. The Distributor shall send to the Trust promptly all subscriptions placed with the Distributor. The Trust shall advise the Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by the Distributor that which is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust shall furnish the Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust and Shares as the Distributor may reasonably request. The Trust shall supply the Distributor with such copies of the Prospectus as the Distributor may reasonably request. The Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust or have any rights under this Agreement.
(c) The Trust reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension the Distributor shall cease to offer shares of stockShares.
(d) The Trust and the Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, provided that the Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the The Trust shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's qualification under applicable state securities laws. The Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; and that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from the Distributor to do so, the Distributor may, at its option, terminate this Agreement immediately. The Trust shall not file any amendment to its Registration Statement and Prospectus without giving the Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement contained shall in any way limit the Trust's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities 1940 Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold the Distributor, its several officers and directors, and any person who controls the Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) that which any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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, unless such statement or omission was made in reliance upon, and in conformity with, information furnished to the Trust in connection therewith by or on behalf of Distributor; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect the Distributor against any liability to the Trust or its security holders to which the Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by the Distributor, which approval shall not be withheld unreasonably. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by the Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case the Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the reasonable fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by the Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify the Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of Shares.
(g) The Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Securities Act, or under common law or otherwise, but only to the extent that such liability, liability or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by the Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. The Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon the Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on the Distributor's part, and in any other event the Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify the Distributor of any such action shall not relieve the Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust shall advise the Distributor immediately: (i) of any request by the Commission for amendments to the Trust's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with the Commission under the 1940 Act or the Securities Act.
Appears in 2 contracts
Samples: Distribution Agreement (CRM Funds), Distribution Agreement (CRM Funds)
Distribution Services. Subject to the direction and control of the TrustSound Shore's Board of Trustees Directors (the "Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the TrustSound Shore, Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to the Trust Sound Shore for acceptance and shall not be binding on the Trust Sound Shore until accepted by it. Distributor shall have no authority to make binding subscriptions on behalf of the TrustSound Shore. The Trust Sound Shore reserves the right to sell Shares directly to investors through subscriptions received by the TrustSound Shore. Distributor's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or Sound Shore or, if applicable, its separate series or classes with any other investment company or series or class thereof, (b) the TrustSound Shore's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the TrustSound Shore's shareholders of dividends or other distributions or any other offering by the Trust Sound Shore of securities to its shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust Sound Shore promptly all subscriptions placed with Distributor. The Trust Sound Shore shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that which is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust Sound Shore shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust Sound Shore and Shares as Distributor may reasonably request. The Trust Sound Shore shall supply Distributor with such copies of the Prospectus as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust Sound Shore or have any rights under this Agreement.
(c) The Trust Sound Shore reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor shall cease to offer shares of stockStock.
(d) The Trust Sound Shore and Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust Sound Shore may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust Sound Shore shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the TrustSound Shore's qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust Sound Shore represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust Sound Shore represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the TrustSound Shore's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust Sound Shore will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the TrustSound Shore's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust Sound Shore shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust Sound Shore shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement contained shall in any way limit the TrustSound Shore's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems deem advisable, such right being in all respects absolute and unconditional. The Trust Sound Shore represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust Sound Shore will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor IndemniteesIndemnities"), free and harmless 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 counsel fees incurred in connection therewith) that which any Distributor Indemnitee Indemnity may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the TrustSound Shore's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust Sound Shore or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees Indemnities is expressly conditioned upon the Trust Sound Shore being notified of any action brought against any Distributor IndemniteeIndemnity, such notification to be given by letter, facsimile transmission or telegram to the Trust Sound Shore and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust Sound Shore of any such action shall not relieve the Trust Sound Shore from any liability which it may have to any Distributor Indemnitee Indemnity otherwise than on account of the indemnification provided for in this paragraph (f). The Trust Sound Shore will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust Sound Shore elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust Sound Shore does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust Sound Shore or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the TrustSound Shore, the Trust Sound Shore will reimburse any Distributor Indemnitee Indemnity named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the TrustSound Shore's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee Indemnity and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees Indemnities and their respective successors and assigns. The Trust Sound Shore agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust Sound Shore or any of its trustees directors or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the TrustSound Shore, its several officers and directors, and any person who controls the Trust Sound Shore within the meaning of Section 15 of the Securities Act (collectively, the "Trust IndemniteesSound Shore Indemnities"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee Sound Shore Indemnity may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees Sound Shore Indemnities resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust Sound Shore for use in the TrustSound Shore's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees Sound Shore Indemnities is expressly conditioned upon Distributor being notified of any action brought against a Trust IndemniteeSound Shore Indemnity, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the TrustSound Shore, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees Sound Shore Indemnities named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee Sound Shore Indemnity otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust Sound Shore shall advise Distributor immediately: (i) of any request by the Commission for amendments to the TrustSound Shore's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the TrustSound Shore's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the TrustSound Shore's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the TrustSound Shore's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
Appears in 2 contracts
Samples: Distribution Agreement (Sound Shore Fund Inc), Distribution Agreement (Sound Shore Fund Inc)
Distribution Services. Subject to the direction and control of the TrustSound Shore's Board of Trustees Directors (the "Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the TrustSound Shore, Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to the Trust Sound Shore for acceptance and shall not be binding on the Trust Sound Shore until accepted by it. Distributor shall have no authority to make binding subscriptions on behalf of the TrustSound Shore. The Trust Sound Shore reserves the right to sell Shares directly to investors through subscriptions received by the TrustSound Shore. Distributor's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or Sound Shore or, if applicable, its separate series or classes with any other investment company or series or class thereof, (b) the TrustSound Shore's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the TrustSound Shore's shareholders of dividends or other distributions or any other offering by the Trust Sound Shore of securities to its shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust Sound Shore promptly all subscriptions placed with Distributor. The Trust Sound Shore shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that which is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust Sound Shore shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust Sound Shore and Shares as Distributor may reasonably request. The Trust Sound Shore shall supply Distributor with such copies of the Prospectus as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust Sound Shore or have any rights under this Agreement.
(c) The Trust Sound Shore reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor shall cease to offer shares of stockStock.
(d) The Trust Sound Shore and Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust Sound Shore may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust Sound Shore shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the TrustSound Shore's qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust Sound Shore represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust Sound Shore represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the TrustSound Shore's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust Sound Shore will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the TrustSound Shore's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust Sound Shore shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust Sound Shore shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement contained shall in any way limit the TrustSound Shore's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems deem advisable, such right being in all respects absolute and unconditional. The Trust Sound Shore represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust Sound Shore will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor IndemniteesIndemnities"), free and harmless 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 counsel fees incurred in connection therewith) that which any Distributor Indemnitee Indemnity may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the TrustSound Shore's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust Sound Shore or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees Indemnities is expressly conditioned upon the Trust Sound Shore being notified of any action brought against any Distributor IndemniteeIndemnity, such notification to be given by letter, facsimile transmission or telegram to the Trust Sound Shore and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust Sound Shore of any such action shall not relieve the Trust Sound Shore from any liability which it may have to any Distributor Indemnitee Indemnity otherwise than on account of the indemnification provided for in this paragraph (f). The Trust Sound Shore will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust Sound Shore elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust Sound Shore does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust Sound Shore or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the TrustSound Shore, the Trust Sound Shore will reimburse any Distributor Indemnitee Indemnity named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the TrustSound Shore's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee Indemnity and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees Indemnities and their respective successors and assigns. The Trust Sound Shore agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust Sound Shore or any of its trustees directors or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the TrustSound Shore, its several officers and directors, and any person who controls the Trust Sound Shore within the meaning of Section 15 of the Securities Act (collectively, the "Trust IndemniteesSound Shore Indemnities"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee Sound Shore Indemnity may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees Sound Shore Indemnities resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust Sound Shore for use in the TrustSound Shore's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees Sound Shore Indemnities is expressly conditioned upon Distributor being notified of any action brought against a Trust IndemniteeSound Shore Indemnity, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the TrustSound Shore, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees Sound Shore Indemnities named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee Sound Shore Indemnity otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust Sound Shore shall advise Distributor immediately: (i) of any request by the Commission for amendments to the TrustSound Shore's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the TrustSound Shore's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the TrustSound Shore's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the TrustSound Shore's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
(i) At the request of Sound Shore, Distributor shall enter into Servicing Agent agreements with securities dealers for the purpose of facilitating the offer, sale and redemption of Shares by Shareholders; provided, that Sound Shore shall pre-approve the forms of agreements with Servicing Agents and shall have the right to approve any compensation, if any, set forth therein or any material changes from such pre-approved forms. Shares of each Fund or Class thereof shall be offered and resold by Servicing Agents only at the public offering prices and under the terms set forth in the Prospectus relating to the Shares. Within the United States, Distributor shall enter into Servicing Agent agreements only with members in good standing of the NASD.
Appears in 1 contract
Distribution Services. Subject to the direction and control of the TrustCorporation's Board of Trustees Directors (the "Board"), the Distributor Placement Agent shall serve as distributor underwriter of the Shares.
(a) As agent of and sole distributor underwriter for the TrustCorporation, Distributor the Placement Agent shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor the Placement Agent shall be directed to the Trust Corporation for acceptance and shall not be binding on the Trust Corporation until accepted by it. Distributor The Placement Agent shall have no authority to make binding subscriptions on behalf of the TrustCorporation. The Trust Corporation reserves the right to sell Shares directly to investors through subscriptions received by the TrustCorporation. DistributorThe Placement Agent's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereof, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the TrustCorporation's shareholders stockholders of dividends or other distributions or any other offering by the Trust Corporation of securities to its shareholders.
(b) Distributor The Placement Agent shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor The Placement Agent shall send to the Trust Corporation promptly all subscriptions placed with Distributorthe Placement Agent. The Trust shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust Corporation shall furnish Distributor to the Placement Agent from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust Corporation and Shares as Distributor the Placement Agent may reasonably request. The Trust Corporation shall supply Distributor the Placement Agent with such copies of the Prospectus as Distributor the Placement Agent may reasonably request. Distributor The Placement Agent may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust Corporation or have any rights under this Agreement.
(c) The Trust Corporation reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor the Placement Agent shall cease to offer shares of stockthe Shares.
(d) The Trust Corporation and Distributor the Placement Agent will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust Corporation may designate, provided, that Distributor . The Corporation shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the TrustCorporation's qualification under applicable state securities laws. Distributor The Placement Agent shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust Corporation represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust Corporation represents and warrants that its Registration Statement and Prospectus 2 contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; and that the TrustCorporation's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust Corporation will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the TrustCorporation's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust Corporation shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor the Placement Agent to do so, Distributor the Placement Agent may, at its option, terminate this Agreement immediately. The Trust Corporation shall not file any amendment to its Registration Statement and Prospectus without giving Distributor the Placement Agent reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the TrustCorporation's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust Corporation represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust Corporation will indemnify, defend and hold Distributorthe Placement Agent, its several officers and directors, and any person who controls Distributor the Placement Agent within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Placement Agent Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that which any Distributor Placement Agent Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the TrustCorporation's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor the Placement Agent against any liability to the Trust Corporation or its 3 security holders to which Distributor the Placement Agent 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 Section 2. This agreement to indemnify Distributor the Placement Agent Indemnitees is expressly conditioned upon the Trust Corporation being notified of any action brought against any Distributor Placement Agent Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust Corporation and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust Corporation of any such action shall not relieve the Trust Corporation from any liability which it may have to any Distributor Placement Agent Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust Corporation will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributorthe Placement Agent. In the event the Trust Corporation elects to assume the defense of any such suit and retain counsel of good standing approved by Distributorthe Placement Agent, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust Corporation does not elect to assume the defense of any such suit, or in case Distributor the Placement Agent does not approve of counsel chosen by the Trust Corporation or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the TrustCorporation, the Trust Corporation will reimburse any Distributor Placement Agent Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the TrustCorporation's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Placement Agent Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributorthe Placement Agent. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Placement Agent Indemnitees and their respective successors and assigns. The Trust Corporation agrees promptly to notify Distributor the Placement Agent of the commencement of any litigation or proceeding against the Trust Corporation or any of its trustees Directors or officers in connection with the issue or sale of Shares.
(g) Distributor The Placement Agent agrees to indemnify, defend and hold the TrustCorporation, its several officers and directors, and any person who controls the Trust Corporation within the meaning of Section 15 of the Securities Act (collectively, the "Trust Corporation Indemnitees"), free and harmless from and against any and all claims, demands, liabilities, liabilities and expenses (including the cost of investigating or defending such claims, demands or liabilities and any reasonable counsel fees incurred in connection therewith) which any Trust Corporation Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, liability or expense incurred by the Trust Corporation Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information 4 furnished in writing by Distributor the Placement Agent in its capacity as distributor to the Trust Corporation for use in the TrustCorporation's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. DistributorThe Placement Agent's agreement to indemnify the Trust Corporation Indemnitees is expressly conditioned upon Distributor the Placement Agent being notified of any action brought against a Trust Corporation Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor The Placement Agent shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the TrustCorporation, if such action is based solely upon such alleged misstatement or omission on Distributorthe Placement Agent's part, and in any other event Distributor the Placement Agent and the Trust Corporation Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure to so to notify Distributor the Placement Agent of any such action shall not relieve Distributor the Placement Agent from any liability which it may have to any Trust Corporation Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust Corporation shall advise Distributor the Placement Agent immediately: (i) of any request by the Commission for amendments to the TrustCorporation's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of or any stop order suspending the effectiveness of the TrustCorporation's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the TrustCorporation's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the TrustCorporation's Registration Statement or Prospectus which may from time to time be filed with the Commission under the Act or the Securities Act.
Appears in 1 contract
Samples: Placement Agency Agreement (Dem Inc)
Distribution Services. Subject to the direction and control of the Trust's Board of Trustees (the "Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the Trust, Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to the Trust for acceptance and shall not be binding on the Trust until accepted by it. Distributor shall have no authority to make binding subscriptions on behalf of the Trust. The Trust reserves the right to sell Shares directly to investors through subscriptions received by the Trust. Distributor's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereof, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions or any other offering by the Trust of securities to its shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust promptly all subscriptions placed with Distributor. The Trust shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust and Shares as Distributor may reasonably request. The Trust shall supply Distributor with such copies of the Prospectus as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust or have any rights under this Agreement.
(c) The Trust reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor shall cease to offer shares of stock.
(d) The Trust and Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust shall be responsible for payment of all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the Trust's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust shall advise Distributor immediately: (iI) of any request by the Commission for amendments to the Trust's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
Appears in 1 contract
Distribution Services. Subject to the direction and control of the Trust's Sound Shore’s Board of Trustees Directors (the "“Board"”), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the TrustSound Shore, Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to the Trust Sound Shore for acceptance and shall not be binding on the Trust Sound Shore until accepted by it. Distributor shall have no authority to make binding subscriptions on behalf of the TrustSound Shore. The Trust Sound Shore reserves the right to sell Shares directly to investors through subscriptions received by the TrustSound Shore. Distributor's ’s rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or Sound Shore or, if applicable, its separate series or classes with any other investment company or series or class thereof, (b) the Trust's Sound Shore’s acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the Trust's Sound Shore’s shareholders of dividends or other distributions or any other offering by the Trust Sound Shore of securities to its shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust Sound Shore promptly all subscriptions placed with Distributor. The Trust Sound Shore shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that which is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust Sound Shore shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust Sound Shore and Shares as Distributor may reasonably request. The Trust Sound Shore shall supply Distributor with such copies of the Prospectus as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust Sound Shore or have any rights under this Agreement.
(c) The Trust Sound Shore reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor shall cease to offer shares of stockStock.
(d) The Trust Sound Shore and Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust Sound Shore may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust Sound Shore shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's Sound Shore’s qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust Sound Shore represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "“Commission"”) thereunder. The Trust Sound Shore represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the Trust's Sound Shore’s Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust Sound Shore will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's Sound Shore’s counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust Sound Shore shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust Sound Shore shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement contained shall in any way limit the Trust's Sound Shore’s right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems deem advisable, such right being in all respects absolute and unconditional. The Trust Sound Shore represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust Sound Shore will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "“Distributor Indemnitees"Indemnities”), free and harmless 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 counsel fees incurred in connection therewith) that which any Distributor Indemnitee Indemnity may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Sound Shore’s Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust Sound Shore or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees Indemnities is expressly conditioned upon the Trust Sound Shore being notified of any action brought against any Distributor IndemniteeIndemnity, such notification to be given by letter, facsimile transmission or telegram to the Trust Sound Shore and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust Sound Shore of any such action shall not relieve the Trust Sound Shore from any liability which it may have to any Distributor Indemnitee Indemnity otherwise than on account of the indemnification provided for in this paragraph (f). The Trust Sound Shore will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust Sound Shore elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust Sound Shore does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust Sound Shore or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the TrustSound Shore, the Trust Sound Shore will reimburse any Distributor Indemnitee Indemnity named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's Sound Shore’s representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee Indemnity and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees Indemnities and their respective successors and assigns. The Trust Sound Shore agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust Sound Shore or any of its trustees directors or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the TrustSound Shore, its several officers and directors, and any person who controls the Trust Sound Shore within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"“Sound Shore Indemnities”), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee Sound Shore Indemnity may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees Sound Shore Indemnities resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust Sound Shore for use in the Trust's Sound Shore’s Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's ’s agreement to indemnify the Trust Indemnitees Sound Shore Indemnities is expressly conditioned upon Distributor being notified of any action brought against a Trust IndemniteeSound Shore Indemnity, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the TrustSound Shore, if such action is based solely upon such alleged misstatement or omission on Distributor's ’s part, and in any other event Distributor and the Trust Indemnitees Sound Shore Indemnities named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee Sound Shore Indemnity otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust Sound Shore shall advise Distributor immediately: (i) of any request by the Commission for amendments to the Trust's Sound Shore’s Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Sound Shore’s Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Sound Shore’s Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Sound Shore’s Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
(i) At the request of Sound Shore, Distributor shall enter into Servicing Agent agreements with securities dealers for the purpose of facilitating the offer, sale and redemption of Shares by Shareholders; provided, that Sound Shore shall pre-approve the forms of agreements with Servicing Agents and shall have the right to approve any compensation, if any, set forth therein or any material changes from such pre-approved forms. Shares of each Fund or Class thereof shall be offered and resold by Servicing Agents only at the public offering prices and under the terms set forth in the Prospectus relating to the Shares. Within the United States, Distributor shall enter into Servicing Agent agreements only with members in good standing of the Financial Industry Regulatory Authority.
Appears in 1 contract
Distribution Services. Subject to the direction and control of the TrustCorporation's Board of Trustees Directors (the "Board"), the Distributor Placement Agent shall serve as distributor underwriter of the Shares.
(a) As agent of and sole distributor underwriter for the TrustCorporation, Distributor the Placement Agent shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered regis- tered under the Securities Act and applicable state securities laws. All subscriptions for the Shares obtained by Distributor the Placement Agent shall be directed to the Trust Corporation for acceptance and shall not be binding on the Trust Corporation until accepted by it. Distributor The Placement Agent shall have no authority to make binding subscriptions on behalf of the TrustCorporation. The Trust reserves the right to sell Shares directly to investors through subscriptions received by the Trust. DistributorPlacement Agent's rights hereunder shall not apply to Shares shares of Common Stock issued in connection with (a) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereof, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the TrustCorporation's shareholders stockholders of dividends or other distributions or any other offering by the Trust Corporation of securities to its shareholdersstockholders.
(b) Distributor The Placement Agent shall use its best efforts to obtain subscriptions to the Shares upon the terms and conditions contained herein and in the Prospectus, including the offering priceOffering Price. Distributor The Corporation shall send furnish to the Trust promptly all subscriptions placed with Distributor. The Trust shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust shall furnish Distributor Placement Agent from time to time, for use in connection with the offering of SharesOffering, such other information with respect to the Trust Corporation and the Shares as Distributor the Placement Agent may reasonably request. The Trust Corporation shall supply Distributor the Placement Agent with such copies of the Prospectus as Distributor the Placement Agent may reasonably request. Distributor The Placement Agent may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust Corporation or have any rights under this Agreement.
(c) The Trust Corporation reserves the right to suspend the offering of Shares Offering at any time, in the absolute discretion of the BoardBoard of Directors, and upon notice of such suspension Distributor the Placement Agent shall cease to offer shares of stockthe Shares.
(d) The Trust Corporation and Distributor the Placement Agent will cooperate with each other in taking such action as may be necessary to qualify the Shares for sale under the securities laws of such states as the Trust Corporation may designate, provided, that Distributor . The Corporation shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust shall be responsible for payment of pay all fees and expenses of registering the Shares under the Securities Act and of registering or qualifying the Shares and the TrustCorporation's qualification under applicable state securities laws. Distributor The Placement Agent shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the Trust's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust Corporation shall advise Distributor the Placement Agent immediately: (i) of any request by the Commission for amendments to the TrustCorporation's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of or any stop order suspending the effectiveness of the TrustCorporation's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the TrustCorporation's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the TrustCorporation's Registration Statement or Prospectus which may from time to time be filed with the Commission under the Act or the Securities Act.
Appears in 1 contract
Distribution Services. Subject to the direction and control of the Trust's Board of Trustees (the "Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the Trust, the Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by the Distributor shall be directed to the Trust for acceptance and shall not be binding on the Trust until accepted by it. The Distributor shall have no authority to make binding subscriptions on behalf of the Trust. The Trust reserves the right to sell Shares directly to investors through subscriptions received by the Trust. The Distributor's rights hereunder under this Agreement shall not apply to Shares issued in connection with (ai) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereof, (bii) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (ciii) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions from the Trust or any other offering by the Trust of securities to its shareholders.
(b) The Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. The Distributor shall send to the Trust promptly all subscriptions placed with the Distributor. The Trust shall advise the Distributor in its capacity as distributor of the approximate net asset value per Share determined at any time requested by Distributor that is a net asset value determination time as disclosed in the Prospectus Prospectus, upon the request of the Distributor and at such other times as it shall have been determined. The Trust shall furnish to the Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust and Shares as the Distributor may reasonably request. The Trust shall supply the Distributor with such copies of the Prospectus as the Distributor may reasonably request. The Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunderunder this Agreement, but no such employee, agent or other person shall be deemed to be an agent of the Trust or have any rights under this Agreement.
(c) The Trust reserves the right to suspend the offering of Shares at any timetime and to reject any particular subscription for Shares, in the absolute discretion of the Board, and upon notice of such suspension the Distributor shall cease to offer shares of stockShares.
(d) The Trust and the Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, provided that the Distributor shall not be required by this Agreement to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement Any such qualification may be withheld, terminated or withdrawn by the Trust's investment adviser Trust at any time in its discretion. The Distributor shall furnish such information and other material relating to reimburse expenses of its affairs and activities as may be required by the Trust that relate in connection with such qualification. The Distributor shall monitor sales of Shares, ensure compliance with any state laws relating to the Fundsissue or sale of such Shares, and register, or prepare applicable filings with respect to the Shares with the various state and other securities commissions. The Trust shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's qualification under applicable state securities laws. The Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; and that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from the Distributor to do so, the Distributor may, at its option, terminate this Agreement effective immediately. The Trust shall not file any amendment to its Registration Statement and Prospectus without giving the Distributor reasonable notice thereof in advancethereof; provided, however, that nothing contained in this Agreement contained shall in any way limit the Trust's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities 1940 Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust or its security holders to which Distributor 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 Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust shall advise Distributor immediately: (i) of any request by the Commission for amendments to the Trust's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
Appears in 1 contract
Distribution Services. Subject to the direction and control of the TrustCorporation's Board of Trustees Directors (the "Board"), the Distributor shall serve as distributor of the Shares.
(a) As agent of and sole distributor for the TrustCorporation, the Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by the Distributor shall be directed to the Trust Corporation for acceptance and shall not be binding on the Trust Corporation until accepted by it. The Distributor shall have no authority to make binding subscriptions on behalf of the TrustCorporation. The Trust Corporation reserves the right to sell Shares directly to investors through subscriptions received by the TrustCorporation. The Distributor's rights hereunder shall not apply to Shares issued in connection with (ai) the merger or consolidation of the Trust Corporation or its series or classes with any other investment company or series or class thereof, (bii) the TrustCorporation's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (ciii) the reinvestment in Shares by the TrustCorporation's shareholders of dividends or other distributions or any other offering by the Trust Corporation of securities to its shareholders.
(b) The Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. The Distributor shall send to the Trust Corporation promptly all subscriptions placed with the Distributor. The Trust Corporation shall advise the Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by the Distributor that which is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust Corporation shall furnish to the Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust Corporation and Shares as the Distributor may reasonably request. The Trust Corporation shall supply the Distributor with such copies of the Prospectus as the Distributor may reasonably request. The Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust Corporation or have any rights under this Agreement.
(c) The Trust Corporation reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension the Distributor shall cease to offer shares of stockShares.
(d) The Trust Corporation and the Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust Corporation may designate, provided, provided that the Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust The Corporation shall be responsible for payment of pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the TrustCorporation's qualification under applicable state securities laws. The Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust Corporation represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust Corporation represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; and that the TrustCorporation's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust Corporation will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the TrustCorporation's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust Corporation shall not file such amendment or amendments within fifteen days after receipt of a written request from the Distributor to do so, the Distributor may, at its option, terminate this Agreement immediately. The Trust Corporation shall not file any amendment to its Registration Statement and Prospectus without giving the Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement contained shall in any way limit the TrustCorporation's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust Corporation represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities 1940 Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust Corporation will indemnify, defend and hold the Distributor, its several officers and directors, and any person who controls the Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) that which any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the TrustCorporation's Registration Statement and Prospectus under the Securities Act 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, unless such statement or omission was made in reliance upon, and in comformity with, information furnished to the Corporation in connection therewith by or on behalf of the Distributor; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect the Distributor against any liability to the Trust Corporation or its security holders to which the Distributor 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 Section 2. This agreement to indemnify the Distributor Indemnitees is expressly conditioned upon the Trust Corporation being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust Corporation and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust Corporation of any such action shall not relieve the Trust Corporation from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust Corporation will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by the Distributor, which approval shall not be withheld unreasonably. In the event the Trust Corporation elects to assume the defense of any such suit and retain counsel of good standing approved by the Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust Corporation does not elect to assume the defense of any such suit, or in case the Distributor does not approve of counsel chosen by the Trust Corporation or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the TrustCorporation, the Trust Corporation will reimburse any Distributor Indemnitee named as defendant in such suit for the reasonable fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the TrustCorporation's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by the Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust Corporation agrees promptly to notify the Distributor of the commencement of any litigation or proceeding against the Trust Corporation or any of its trustees Directors or officers in connection with the issue or sale of Shares.
(g) The Distributor agrees to indemnify, defend and hold the TrustCorporation, its several officers and directors, and any person who controls the Trust Corporation within the meaning of Section 15 of the Securities Act (collectively, the "Trust Corporation Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Corporation Indemnitee may incur under the Securities Act, or under common law or otherwise, but only to the extent that such liability, liability or expense incurred by the Trust Corporation Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by the Distributor in its capacity as distributor to the Trust Corporation for use in the TrustCorporation's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. The Distributor's agreement to indemnify the Trust Corporation Indemnitees is expressly conditioned upon the Distributor being notified of any action brought against a Trust Corporation Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the TrustCorporation, if such action is based solely upon such alleged misstatement or omission on the Distributor's part, and in any other event the Distributor and the Trust Corporation Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify the Distributor of any such action shall not relieve the Distributor from any liability which it may have to any Trust Corporation Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust Corporation shall advise the Distributor immediately: (i) of any request by the Commission for amendments to the TrustCorporation's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the TrustCorporation's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the TrustCorporation's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the TrustCorporation's Registration Statement or Prospectus which may from time to time be filed with the Commission under the 1940 Act or the Securities Act.
Appears in 1 contract
Distribution Services. Subject The Distributor shall sell and repurchase Shares as set forth below, subject to the direction and control registration requirements of the Trust's Board 1933 Act and the rules and regulations thereunder, and the laws governing the sale of Trustees securities in the various states ("Blue Sky Laws"):
a. The Distributor, subject to applicable federal and state laws and the "Board")Master Trust Agreement and By-Laws, agrees to sell the Shares from time to time during the term of this Agreement upon the terms described in the Registration Statement.
b. The public offering price of the Shares of each Portfolio (and, with respect to each Portfolio offering multiple classes of Shares, the Distributor Shares of each class of such Portfolio) shall serve as distributor be the respective net asset value of the SharesShares of the Portfolio as next determined by the Trust following receipt of an order at the Distributor's principal office plus the applicable initial sales charge, if any.
(a) As agent c. The net asset value of and sole distributor for the Trust, Distributor shall offer, and solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to determined in the manner provided in the applicable Prospectus and Statement of Additional Information. The net asset value of the Shares shall be calculated by the Trust for acceptance and shall not be binding on the Trust until accepted or by it. Distributor shall have no authority to make binding subscriptions another entity on behalf of the Trust. The Trust reserves Distributor shall have no duty to inquire into or liability for the right to sell Shares directly to investors through subscriptions received by the Trust. Distributor's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation accuracy of the Trust or its series or classes with any other investment company or series or class thereof, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions or any other offering by the Trust of securities to its shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust promptly all subscriptions placed with Distributor. The Trust shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by Distributor that is a net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust and Shares as Distributor may reasonably request. The Trust shall supply Distributor with such copies of the Prospectus as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an agent of the Trust or have any rights under this Agreementcalculated.
(c) The Trust reserves d. Upon receipt of purchase instructions, the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor shall cease to offer shares of stock.
(d) The Trust and Distributor will cooperate with each other in taking transmit such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Funds, the Trust shall be responsible for payment of all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust shall not file any amendment to its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the Trust's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability instructions to the Trust or its security holders transfer agent for registration of the Shares purchased. The Distributor is authorized to which Distributor would otherwise be subject by reason collect the gross proceeds derived from the sale of willful misfeasanceShares, bad faith, or gross negligence in remit the performance of its duties, or by reason of its reckless disregard of its obligations and duties under this Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram net asset value thereof to the Trust upon receipt of the proceeds, and referring retain any initial sales charge less any reallowance paid to dealers (the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person"Net Sales Charges"). The failure so Distributor, in light of Trust policies, procedures and disclosure documents, shall also have the right to take all actions which, in the Distributor's judgment, are necessary to effect the distribution of Shares. The Distributor in its discretion may enter into agreements to sell Shares to such registered and qualified retail dealers as it may select at the public offering price less the reallowance established in the Prospectuses. In making agreement with such dealers, the Distributor shall act only as principal and not as agent for the Trust.
e. The Distributor, for the account of the Trust, may repurchase the Shares at such prices and upon such terms and conditions as shall be specified in the Registration Statement (the "Repurchase Price"). Such price shall reflect the subtraction of the contingent deferred sales charge, if any, computed in accordance with and in the manner set forth in the Registration Statement. At the end of each business day, the Distributor shall notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations transfer agent of the number of shares redeemed, and warranties the identity of the shareholders or dealers offering Shares for repurchase. Upon such notice, the Trust shall pay the Distributor the Repurchase Price in this Agreement shall remain operative and cash or in full force and effect regardless the form of any investigation made by or on behalf of any a credit against monies due the Trust from the Distributor Indemnitee and shall survive as proceeds from the sale of any Shares made pursuant to subscriptions obtained by DistributorShares. The indemnification provisions of this paragraph (f) Distributor will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of Shares.
(g) Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons receive no commission or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust shall advise Distributor immediately: (i) of any request by the Commission for amendments to the Trust's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.remuneration for
Appears in 1 contract
Samples: Distribution Agreement (Pauze Funds)
Distribution Services. Subject to the direction (a) Forum shall act as agent and control of the Trust's Board of Trustees (the "Board"), the Distributor shall serve as sole distributor of the Shares.
(a) As agent of and sole distributor for the Trust, Distributor shall Trust to offer, and to solicit offers to subscribe to, the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities lawsAct. All subscriptions for Shares obtained by Distributor Forum shall be directed to the Trust for acceptance and shall not be binding on the Trust until accepted by itthereby. Distributor Forum shall have no authority to make binding subscriptions on behalf of the Trust. The Trust reserves the right to sell Shares directly to investors through subscriptions received by the Trust. Distributor's rights hereunder The right given to Forum under this Agreement shall not apply to Shares issued in connection with (a) the merger or consolidation of the Trust or its series or classes with any other investment company or series or class thereofwith the Trust, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions or any other offering by the Trust of securities to its shareholders.
(b) Distributor shall Forum will use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the then current Prospectus, including the offering price. Distributor shall Forum will send to the Trust promptly all subscriptions placed with DistributorForum. The Trust shall will advise Distributor Forum in its capacity as distributor hereunder of the approximate net asset value per Share at any time requested by Distributor that is a or net asset value determination time per Share (as disclosed used in the Prospectus Prospectus) on any date requested by Forum and at such other times as it shall have been determineddetermined by the Trust. The Trust shall furnish Distributor Forum from time to time, for use in connection with the offering of Shares, such other information with respect to the Trust and Shares as Distributor Forum may reasonably request. The Trust shall supply Distributor Forum with such copies of the current Prospectus in effect from time to time as Distributor Forum may reasonably request. Distributor Forum may use its employees, and agents and other persons who need not be its employees, at its Forum's cost and expense, to assist it Forum in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an the Trust's agent of the Trust or have any rights under this Agreement.
(c) The Trust reserves the right to suspend the offering of Shares at any time, in the absolute discretion of the Board, and upon notice of such suspension Distributor Forum shall cease to offer shares of stockShares.
(d) The Trust and Distributor Forum will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, that Distributor Forum shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the The Trust that relate to the Funds, the Trust shall be responsible for payment of will pay all fees and expenses of registering Shares under the Securities Act and of registering or qualifying qualification of Shares and the Trust's its qualification under applicable state securities laws. Distributor Forum shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents to Forum that its Registration Statement and Prospectus (as in effect from time to time) under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") SEC thereunder. The Trust represents and warrants to Forum in Forum's capacity as distributor that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunderSEC, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that neither the Trust's Registration Statement and nor the Prospectus, when they it shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares. The Trust will from time to time file such amendment or amendments to its the Registration Statement and Prospectus as, in the light of future developments, shall, in the opinion of counsel to the Trust's counsel, be necessary in order to have such the Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt by the Trust of a written request from Distributor Forum to do so, Distributor Forum may, at its option, terminate this Agreement immediately. The Trust shall not file any amendment to its the Registration Statement and or Prospectus without giving Distributor Forum reasonable notice thereof in advance; provided, howeverhowever , that nothing contained in this Agreement shall in any way limit the Trust's right to file at any time such amendments to its the Registration Statement and or Prospectus, of whatever character, as it deems the Trust may deem advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants to Forum that any amendment to its the Registration Statement and or Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunderSEC, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendment, when it becomes effective, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will agrees to indemnify, defend and hold DistributorForum, its several officers and directorsTrustees, and any person who controls Distributor Forum within the meaning of Section 15 of the Securities Act (collectively, the collectively "Distributor Forum Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor which a Forum Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and or Prospectus in effect from time to time under the Securities Act or arising out of or based upon any alleged omission to state a material fact required to be stated therein in either thereof or necessary to make the statements therein in either thereof not misleading; provided, however, that in no event shall anything contained in this paragraph (fSection 4(f) be so construed as to protect Distributor Forum against any liability to the Trust or its security holders to which Distributor Forum 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 Section 2Section. This The agreement to indemnify Distributor Forum Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Forum Indemnitee, such notification to be given by letter, telegram or facsimile transmission or telegram addressed to the Trust at its principal office in Portland, Maine, and referring sent to the Trust by the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such personserved. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it the Trust may have to the person against whom such action is brought by reason of any Distributor Indemnitee such alleged untrue statement or omission otherwise than on account of the indemnification provided for Trust's indemnity agreement contained in this paragraph (fSection 4(f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it the Trust and approved by DistributorForum. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by DistributorForum, the defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event ; but in case the Trust does not elect to assume the defense of any such suit, or in case Distributor Forum does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor the Forum Indemnitee named as defendant or defendants in such suit suit, for the fees and expenses of any counsel retained by any such personthe Forum Indemnitee. The indemnification provisions agreement contained in this paragraph (fSection 4(f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor a Forum Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by DistributorForum. The indemnification provisions This Agreement of this paragraph (f) indemnity will inure exclusively to Forum's benefit, to the benefit of Forum's successors and assigns, and to the Distributor Indemnitees benefit of Forum's officers and Trustees and any controlling persons and their respective successors and assigns. The Trust agrees promptly to notify Distributor Forum of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or and sale of any Shares.
(g) Distributor Forum agrees to indemnify, defend and hold the Trust, its the Trust's several officers and directorsTrustees, and any person who controls the Trust Compny within the meaning of Section 15 of the Securities Act (collectively, the collectively "Trust Compnay Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any a Trust Indemnitee may incur under the Act, Act or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees Indemnitee resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor Forum in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus in effect from time to time under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's The agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor Forum being notified of any action brought against a Trust Compamny Indemnitee, such notification to be given by letter, telegram or facsimile transmission or telegram addressed to Forum at its principal office in New York, New York, and referring sent to Forum by the person against whom such action is brought brought, within ten days after the summons or other first legal process shall have been served on such personserved. Distributor Forum shall have a right to control the defense of such action, with counsel of its Forum's own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on DistributorForum's part, and in any other event Distributor Forum and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor Forum of any such action shall not relieve Distributor Forum from any liability which it may have to a Compnay Indemnitee by reason of any Trust Indemnitee such untrue statement or omission on Forum's part otherwise than on account of the indemnification provisions Forum's indemnity agreement contained in this paragraph (gSection 4(g).
(h) The Trust shall agrees to advise Distributor Forum immediately: (i) of any request by the Commission SEC for amendments to the Trust's Registration Statement or Prospectus or for additional information; , (ii) in the event of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; , (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and , and, (iv) of all action of the Commission SEC with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with Commission SEC under the Act or the Securities Act.
Appears in 1 contract
Samples: Management and Distribution Agreement (Forum Funds Inc)
Distribution Services. Subject The Distributor shall sell and repurchase Shares as set forth below, subject to the direction and control registration requirements of the Trust's Board 1933 Act and the rules and regulations thereunder, and the laws governing the sale of Trustees securities in the various states ("Blue Sky Laws"): . The Distributor, subject to applicable federal and state laws and the "Board")Master Trust Agreement and By-Laws, agrees to sell the Shares from time to time during the term of this Agreement upon the terms described in the Registration Statement. . The public offering price of the Shares of each Portfolio (and, with respect to each Portfolio offering multiple classes of Shares, the Distributor Shares of each class of such Portfolio) shall serve as distributor be the respective net asset value of the Shares.
(a) As agent Shares of and sole distributor for the TrustPortfolio as next determined by the Trust following receipt of an order at the Distributor's principal office plus the applicable initial sales charge, Distributor shall offer, and solicit offers to subscribe to, if any. . The net asset value of the unsold balance of Shares as shall then be effectively registered under the Securities Act and applicable state securities laws. All subscriptions for Shares obtained by Distributor shall be directed to 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 for acceptance and shall not be binding on the Trust until accepted or by it. Distributor shall have no authority to make binding subscriptions another entity on behalf of the Trust. The Trust reserves Distributor shall have no duty to inquire into or liability for the right to sell Shares directly to investors through subscriptions received by the Trust. Distributor's rights hereunder shall not apply to Shares issued in connection with (a) the merger or consolidation accuracy of the Trust or its series or classes with any other investment company or series or class thereof, (b) the Trust's acquisition by purchase or otherwise of all or substantially all of the assets or stock of any other investment company, or (c) the reinvestment in Shares by the Trust's shareholders of dividends or other distributions or any other offering by the Trust of securities to its shareholders.
(b) Distributor shall use its best efforts to obtain subscriptions to Shares upon the terms and conditions contained herein and in the Prospectus, including the offering price. Distributor shall send to the Trust promptly all subscriptions placed with Distributor. The Trust shall advise Distributor in its capacity as distributor of the approximate net asset value per Share at any time requested by as calculated. . Upon receipt of purchase instructions, the Distributor that shall transmit such instructions to the Trust or its transfer agent for registration of the Shares purchased. The Distributor is a authorized to collect the gross proceeds derived from the sale of Shares, remit the net asset value determination time as disclosed in the Prospectus and at such other times as it shall have been determined. The Trust shall furnish Distributor from time to time, for use in connection with the offering of Shares, such other information with respect thereof to the Trust upon receipt of the proceeds, and Shares as Distributor may reasonably requestretain any initial sales charge less any reallowance paid to dealers (the "Net Sales Charges"). The Distributor, in light of Trust policies, procedures and disclosure documents, shall supply also have the right to take all actions which, in the Distributor's judgment, are necessary to effect the distribution of Shares. The Distributor in its discretion may enter into agreements to sell Shares to such registered and qualified retail dealers as it may select at the public offering price less the reallowance established in the Prospectus. In making agreement with such copies dealers, the Distributor shall act only as principal and not as agent for the Trust. . The Distributor, for the account of the Prospectus Trust, may repurchase the Shares at such prices and upon such terms and conditions as Distributor may reasonably request. Distributor may use its employees, agents and other persons who need not be its employees, at its cost and expense, to assist it in carrying out its obligations hereunder, but no such employee, agent or other person shall be deemed to be an specified in the Registration Statement (the "Repurchase Price"). Such price shall reflect the subtraction of the contingent deferred sales charge, if any, computed in accordance with and in the manner set forth in the Registration Statement. At the end of each business day, the Distributor shall notify the Trust and the Trust's transfer agent of the number of shares redeemed, and the identity of the shareholders or dealers offering Shares for repurchase. Upon such notice, the Trust shall pay the Distributor the Repurchase Price in cash or have any rights under this Agreement.
(c) in the form of a credit against monies due the Trust from the Distributor as proceeds from the sale of Shares. The Distributor will receive no commission or other renumeration for repurchasing Shares. Any contingent deferred sales charge shall be paid to the Adviser as repayment for financing the payment of the sales commission for such shares. The Trust reserves the right to suspend such repurchase right upon written notice to the offering of Shares at any time, in the absolute discretion of the Board, Distributor. The Distributor further agrees to receive and upon notice of such suspension Distributor shall cease transmit promptly to offer shares of stock.
(d) The Trust and Distributor will cooperate with each other in taking such action as may be necessary to qualify Shares for sale under the securities laws of such states as the Trust may designate, provided, that Distributor shall not be required to register as a broker-dealer or file a consent to service of process in any such state. Subject to any agreement by the Trust's investment adviser to reimburse expenses of the Trust that relate to the Fundstransfer agent, the Trust shall be responsible shareholder and dealer requests for payment of all fees and expenses of registering Shares under the Securities Act and of registering or qualifying Shares and the Trust's qualification under applicable state securities laws. Distributor shall pay all expenses relating to its broker-dealer qualification.
(e) The Trust represents that its Registration Statement and Prospectus under the Securities Act have been or will be, as the case may be, carefully prepared in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. The Trust represents and warrants that its Registration Statement and Prospectus contain or will contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, and that all statements of fact contained or to be contained therein are or will be true and correct at the time indicated or on the effective date as the case may be; that the Trust's Registration Statement and Prospectus, when they shall become effective or be authorized for use, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser redemption of Shares. The Trust will from time to time file such amendment or amendments to its Registration Statement and Prospectus as, . Nothing in the light of future developments, shall, in the opinion of the Trust's counsel, be necessary in order to have such Registration Statement and Prospectus at all times contain all material facts required to be stated therein or necessary to make any statements therein not misleading to a purchaser of Shares, but, if the Trust shall not file such amendment or amendments within fifteen days after receipt of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement immediately. The Trust shall not file prevent the Distributor or any amendment to "affiliated person" from buying, selling or trading any securities for its Registration Statement and Prospectus without giving Distributor reasonable notice thereof in advanceor their own account or for the accounts of others for whom it or they may be acting; provided, however, that nothing contained in this Agreement the Distributor expressly agrees that it shall in not for its own account purchase any way limit 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's right to file at any time such amendments to its Registration Statement and Prospectus, of whatever character, as it deems advisable, such right being in all respects absolute and unconditional. The Trust represents and warrants that any amendment to its Registration Statement and Prospectus hereafter filed will, when it becomes effective, contain all statements required to be stated therein in accordance with the Securities Act and the rules and regulations of the Commission thereunder, that all statements of fact contained therein will, when the same shall become effective, be true and correct and that no such amendmentit shall not undertake activities which, when it becomes effectivein its judgment, will include an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Shares.
(f) The Trust will indemnify, defend and hold Distributor, its several officers and directors, and any person who controls Distributor within the meaning of Section 15 of the Securities Act (collectively, the "Distributor Indemnitees"), free and harmless 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 counsel fees incurred in connection therewith) that any Distributor Indemnitee may incur, under the Securities Act, or under common law or otherwise, arising out of or based upon any alleged untrue statement of a material fact contained in the Trust's Registration Statement and Prospectus under the Securities Act 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; provided, however, that in no event shall anything contained in this paragraph (f) be so construed as to protect Distributor against any liability to the Trust or its security holders to which Distributor would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in adversely affect the performance of its duties, or by reason of its reckless disregard of its obligations and duties under this Section 2. This agreement to indemnify Distributor Indemnitees is expressly conditioned upon the Trust being notified of any action brought against any Distributor Indemnitee, such notification to be given by letter, facsimile transmission or telegram to the Trust and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. The failure so to notify the Trust of any such action shall not relieve the Trust from any liability which it may have to any Distributor Indemnitee otherwise than on account of the indemnification provided for in under this paragraph (f). The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, and to retain counsel of good standing chosen by it and approved by Distributor. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by Distributor, the defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them. In the event the Trust does not elect to assume the defense of any such suit, or in case Distributor does not approve of counsel chosen by the Trust or has been advised that it may have available defenses or claims which are not available to or conflict with those available to the Trust, the Trust will reimburse any Distributor Indemnitee named as defendant in such suit for the fees and expenses of any counsel retained by any such person. The indemnification provisions contained in this paragraph (f) and the Trust's representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Distributor Indemnitee and shall survive the sale of any Shares made pursuant to subscriptions obtained by Distributor. The indemnification provisions of this paragraph (f) will inure exclusively to the benefit of the Distributor Indemnitees and their respective successors and assigns. The Trust agrees promptly to notify Distributor of the commencement of any litigation or proceeding against the Trust or any of its trustees or officers in connection with the issue or sale of SharesAgreement.
(g) Distributor agrees to indemnify, defend and hold the Trust, its several officers and directors, and any person who controls the Trust within the meaning of Section 15 of the Securities Act (collectively, the "Trust Indemnitees"), free and harmless 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 reasonable counsel fees incurred in connection therewith) which any Trust Indemnitee may incur under the Act, or under common law or otherwise, but only to the extent that such liability, or expense incurred by the Trust Indemnitees resulting from such claims or demands shall arise out of or be based upon any alleged untrue statement of a material fact contained in information furnished in writing by Distributor in its capacity as distributor to the Trust for use in the Trust's Registration Statement or Prospectus under the Securities Act, 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 Prospectus or necessary to make such information not misleading. Distributor's agreement to indemnify the Trust Indemnitees is expressly conditioned upon Distributor being notified of any action brought against a Trust Indemnitee, such notification to be given by letter, facsimile transmission or telegram addressed and referring to the person against whom such action is brought within ten days after the summons or other first legal process shall have been served on such person. Distributor shall have a right to control the defense of such action, with counsel of its own choosing, satisfactory to the Trust, if such action is based solely upon such alleged misstatement or omission on Distributor's part, and in any other event Distributor and the Trust Indemnitees named shall each have the right to participate in the defense or preparation of the defense of any such action. The failure so to notify Distributor of any such action shall not relieve Distributor from any liability which it may have to any Trust Indemnitee otherwise than on account of the indemnification provisions in this paragraph (g).
(h) The Trust shall advise Distributor immediately: (i) of any request by the Commission for amendments to the Trust's Registration Statement or Prospectus or for additional information; (ii) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the Trust's Registration Statement or Prospectus or the initiation of any proceedings for that purpose; (iii) of the happening of any material event which makes untrue any statement made in the Trust's Registration Statement or Prospectus or which requires the making of a change in either thereof in order to make the statements therein not misleading; and (iv) of all action of the Commission with respect to any amendments to the Trust's Registration Statement or Prospectus which may from time to time be filed with Commission under the Act or the Securities Act.
Appears in 1 contract
Samples: Distribution Agreement (Azzad Funds)
