FORM OF AMENDED AND RESTATED DISTRIBUTION AGREEMENT
AMENDED AND RESTATED AGREEMENT made as of [_________] between OLD MUTUAL
ABSOLUTE RETURN INSTITUTIONAL FUND, L.L.C., a Delaware limited liability company
(the "Fund"), and OLD MUTUAL INVESTMENT PARTNERS, a Delaware corporation (the
"Distributor").
WITNESSETH:
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WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as a closed-end, non-diversified
management investment company;
WHEREAS, the Fund is authorized to issue units of limited liability company
interests in the Fund ("Units") pursuant to the Fund's registration statement on
Form N-2, as it may be amended or supplemented from time to time (the
"Registration Statement");
WHEREAS, the Distributor is a securities firm engaged in the business of
selling interests of investment companies either directly to purchasers or
through other securities dealers; and
WHEREAS, the Fund and the Distributor entered into a Distribution Agreement,
dated as of February 8, 2007 (the "Original Agreement"), pursuant to which the
Distributor agreed to furnish the services described herein to the Fund; and
WHEREAS, the Distributor and the Fund now wish to amend and restate the
Original Agreement in its entirety;
NOW THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor; Offering
(a) Subject to the terms and conditions of this Agreement, the Fund hereby
appoints the Distributor as its non-exclusive distributor in connection with the
distribution of the Units, and the Distributor hereby accepts such appointment.
(b) The Distributor agrees to use its reasonable best efforts to offer and
sell Units to investors that the Distributor reasonably believes meet the
eligibility requirements set forth in the Registration Statement.
(c) Unless otherwise agreed by the parties hereto, Larch Lane Advisors LLC,
the Fund's investment adviser (the "Investment Adviser"), or SEI Investments
Global Funds Services, the Fund's administrator (the "Administrator") shall be
responsible for reviewing each investor certificate ("Investor Certificate") to
confirm that it has been completed in accordance with the instructions thereto.
The Fund, the Investment Adviser or the Administrator, in its or their sole
discretion, may return to the Distributor any Investor Certificate that is not
completed to its or their satisfaction and the Fund shall be under no obligation
to accept any Investor Certificate.
(d) The Distributor acknowledges that Units will be offered and sold only as
set forth in the Registration Statement and the Fund's Limited Liability Company
Agreement.
(e) The Fund may suspend or terminate the offering of the Units at any time
as to specific classes of investors (if such separate classes are established),
as to specific jurisdictions or otherwise. Upon notice to the Distributor of
the terms of such suspension or termination, the Distributor shall suspend
solicitation of purchases of Units in accordance with such terms until the Fund
notifies the Distributor that such solicitation may be resumed.
(f) It is acknowledged and agreed that the Distributor is not obligated to
sell any specific number of Units or to purchase any Units for its own account.
The Fund shall be entitled to appoint additional distributors.
Section 2. Xxxxxx.Xx offering Units, the Distributor shall act solely as an
agent of the Fund and not as principal.
Section 3. Duties of the Fund
(a) The Fund shall take, from time to time, but subject always to any
necessary approval of the Board of Managers of the Fund or of the members of the
Fund (the "Members"), all necessary action to fix the number of authorized Units
and such steps as may be necessary to register the same under the Securities Act
of 1933, as amended (the "Securities Act"), to the end that there will be
available for sale such number of Units as the Distributor reasonably may be
expected to sell.
(b) For purposes of the offering of Units, the Fund will furnish to the
Distributor copies of the Registration Statement, including the prospectus
contained therein, the Investor Certificate and any other documentation for use
in the offering of Units. Additional copies of such documents will be furnished
to the Distributor at no cost to the Distributor in such numbers as reasonably
requested. The Distributor is authorized to furnish to prospective investors
only such information concerning the Fund and the offering as may be contained
in the Registration Statement, the Fund's formation documents, or any other
documents (including sales material), if approved by the Fund.
(c) The Fund shall furnish to the Distributor copies of all financial
statements of the Fund which the Distributor may reasonably request for use in
connection with its duties hereunder, and this shall include, upon request by
the Distributor, one certified copy of all financial statements prepared for the
Fund by independent public accountants.
(d) The Fund shall use its best efforts to qualify and maintain the
qualification of the Units for sale under the securities laws of such
jurisdictions as the Distributor and the Fund may approve. Any such
qualification may be withheld, terminated or withdrawn by the Fund at any time
in its discretion. The expense of qualification and maintenance of
qualification shall be borne by the Fund. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Fund in connection with such qualification.
(e) The Fund will furnish, in reasonable quantities upon request by the
Distributor, copies of annual and interim reports of the Fund.
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(f) The Fund will furnish the Distributor with such other documents as it
may reasonably require, from time to time, for the purpose of enabling it to
perform its duties as contemplated by this Agreement.
Section 4. Duties of the Distributor
(a) In addition to providing services to the Fund under this Agreement (as
depicted in Section 1), the Distributor shall seek to retain Member Service
Providers (as defined below) and facilitate and assist in the provision of
investor services ("Member Services") to Members that are customers of the
Member Service Providers (as defined below).
(b) The Distributor shall devote reasonable time and effort to its duties
hereunder. The services of the Distributor to the Fund hereunder are not to be
deemed exclusive and nothing herein contained shall prevent the Distributor from
entering into like arrangements with other investment companies so long as the
performance of its obligations hereunder is not impaired thereby.
(c) In performing its duties hereunder, the Distributor shall use its best
efforts in all respects to duly conform with the requirements of all applicable
laws relating to the sale of securities.
(d) The Distributor shall adopt and follow procedures, as approved by the
officers of the Fund, for the confirmation of sales to investors and Member
Service Providers (as defined below), the collection of amounts payable by
investors and Member Service Providers on such sales, and the cancellation of
unsettled transactions, as may be necessary to comply with the requirements of
the Financial Industry Regulatory Authority, Inc. ("FINRA"), as such
requirements may from time to time exist.
Section 5. Member Service Provider Agreements
(a) The Distributor shall seek to enter into member service provider
agreements (substantially in the form included in SCHEDULE A) with the
securities dealers listed in SCHEDULE B or such other securities dealers deemed
by the Distributor to be well positioned to (i) sell Units and (ii) provide, or
arrange for the provision of, Member Services to Members ("Member Service
Providers") as well as the services included in Annex A to the member service
provider agreement; provided that the Distributor shall periodically inform the
Fund's Board of Managers of its entrance into a member service provider
agreement. Units sold to Member Service Providers shall be for resale by such
Member Service Providers only. Notwithstanding the foregoing, the Distributor
may enter into a member service provider agreement that is materially different
than the form included in SCHEDULE A so long as the Distributor receives the
consent of the Fund's Board of Managers, including a majority of the managers
who are not "interested persons," as such term is defined by the Investment
Company Act, of the Fund.
(b) Within the United States, the Distributor shall offer and sell Units
only to such Member Service Providers as are members in good standing of FINRA.
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Section 6. Fees
(a) As compensation for providing services under this Agreement, the
Fund will pay the Distributor a monthly fee at an annual rate of 0.25% of the
net assets of the Fund as of the end of the month, after adjustment for any
purchases and repurchases of Units during the month, and will be due and payable
in arrears within 30 business days after the end of such month (the "Member
Servicing Fee").
(b) The Distributor may pay amounts pursuant to this Section 6 to any
affiliated person of the Distributor if such affiliated person is a Member
Service Provider.
(c) The Investment Adviser (or its affiliates), in its discretion and from
its own resources, may pay the Distributor additional compensation not to exceed
0.625% (on an annual basis) of the aggregate value of outstanding Units held by
Members (the "Additional Compensation").
(d) Pursuant to limitations imposed by FINRA: (i) the Member Servicing Fee will
be capped at 6% of the total proceeds to be received by the Fund in respect of
sales of Units registered under the Fund's current registration statement on
Form N-2 (the "Offering Proceeds"); and (ii) the Additional Compensation paid by
the Investment Adviser (or its affiliates) to the Distributor will be capped at
2% of the Offering Proceeds.
Section 7. Payment of Expenses
(a) The Fund shall bear all of its own costs and expenses, including fees
and disbursements of its counsel and auditors, in connection with the
preparation and filing of any required registration statements under the
Investment Company Act, and all amendments and supplements thereto, and in
connection with any fees and expenses incurred with respect to any filings with
FINRA and preparing and mailing annual and interim reports and proxy materials
to members (including but not limited to the expense of setting in type any such
registration statements, or interim reports or proxy materials).
(b) The Fund shall bear any cost and expenses of qualification of the Units
for sale pursuant to this Agreement and, if necessary or advisable in connection
therewith, of qualifying the Fund as a broker or dealer in such states of the
United States or other jurisdictions as shall be selected by the Fund and the
Distributor and the cost and expenses payable to each such state for continuing
qualification therein until the Fund decides to discontinue such qualification.
(c) The Distributor shall be responsible for any payments made to Member
Service Providers as outlined in the member service provider agreements. In
addition, after the prospectuses and annual and interim reports have been
prepared and set in type, the Distributor or its affiliates shall bear the costs
and expenses of printing and distributing any copies thereof which are to be
used in connection with the offering of Units to Member Service Providers or
potential investors pursuant to this Agreement. The Distributor shall bear the
costs and expenses of preparing, printing and distributing any other literature
used by the Distributor or furnished by it for use by Member Service Providers
in connection with the offering of the Units for sale to
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the public and any expenses of advertising incurred by the Distributor in
connection with such offering.
Section 8. Indemnification
(a) The Fund shall indemnify and hold harmless the Distributor and each
person, if any, who controls the Distributor, against any loss, liability,
claim, damage or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damage or expense and reasonable
counsel fees incurred in connection therewith), as incurred, arising by reason
of any person acquiring any Units, which may be based upon the Securities Act,
or on any other statute or at common law, on the ground that any registration
statement or other offering materials, as from time to time amended and
supplemented, or an annual or interim report to Members of the Fund, includes an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order 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 Fund in connection therewith by or
on behalf of the Distributor; provided, however, that in no case (i) is the
indemnity of the Fund in favor of the Distributor and any such controlling
persons to be deemed to protect the Distributor or any such controlling persons
thereof against any liability to the Fund or its Members to which the
Distributor or any such controlling persons would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
their duties or by reason of the reckless disregard of their obligations and
duties under this Agreement; or (ii) is the Fund to be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any such controlling persons, unless the Distributor
or such controlling persons, as the case may be, shall have notified the Fund in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim or claims that have been served
upon the Distributor or such controlling persons (or after the Distributor or
such controlling persons shall have received notice of such service on any
designated agent), but failure to notify the Fund of any such claim shall not
relieve it from any liability which it may have to the person against whom such
action is brought otherwise than on account of its indemnity agreement contained
in this paragraph. The Fund will be entitled to participate at its own expense
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Distributor, or such controlling person or persons of the Distributor. In the
event the Fund elects to assume the defense of any such suit and retain such
counsel, the Distributor, or such controlling person or persons of the
Distributor, shall bear the fees and expenses, as incurred, of any additional
counsel retained by them, but in case the Fund does not elect to assume the
defense of any such suit, it will reimburse the Distributor, or such controlling
person or persons of the Distributor, for the reasonable fees and expenses, as
incurred, of any counsel retained by them. The Fund shall promptly notify the
Distributor of the commencement of any litigation or proceedings against it or
any of its officers or Managers in connection with the issuance or sale of any
of the Units.
(b) The Distributor shall indemnify and hold harmless the Fund and each of
its Managers and officers and each person, if any, who controls the Fund against
any loss, liability, claim, damage or expense, as incurred, described in the
foregoing indemnity contained in subsection (a) of this Section 8 but only with
respect to statements or omissions made in reliance
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upon, and in conformity with, information furnished to the Fund in writing by or
on behalf of the Distributor for use in connection with the Registration
Statement or other offering materials, as from time to time amended, or the
annual or interim reports to Members. In case any action shall be brought
against the Fund or any person so indemnified, in respect of which indemnity may
be sought against the Distributor, the Distributor shall have the rights and
duties given to the Fund, and the Fund and each person so indemnified shall have
the rights and duties given to the Distributor by the provisions of subsection
(a) of this Section 8.
Section 9. Duration and Termination of this Agreement
(a) This Agreement shall become effective as of the date first above written
and shall remain in force for two years thereafter and thereafter continue from
year to year, but only so long as such continuance is specifically approved at
least annually (i) by the Managers or by the vote of a majority of the
outstanding voting securities of the Fund and (ii) by the vote of a majority of
those Managers who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting on
such approval.
(b) This Agreement may be terminated at any time, without the payment of any
penalty, by the Managers or by vote of a majority of the outstanding voting
securities of the Fund, or by the Distributor, on sixty days' written notice to
the other party. This Agreement shall automatically terminate in the event of
its assignment.
(c) The terms "vote of a majority of the outstanding voting securities,"
"assignment," and "interested person," when used in this Agreement, shall have
the respective meanings specified in the Investment Company Act.
(d) In the event the offering of Units is terminated, the Distributor will
not be entitled to unrecovered compensation (except for out-of-pocket expenses).
Section 10. Amendments of this Agreement
This Agreement may be amended by the parties only if such amendment is
specifically approved (i) by the Managers or by the vote of a majority of
outstanding voting securities of the Fund and (ii) by the vote of a majority of
those Managers who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting on
such approval.
Section 11. Governing Law
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York as at the time in effect and
the applicable provisions of the Investment Company Act. To the extent that the
applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Investment Company Act, the
latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written. This Agreement may be executed by the parties
hereto in any number of counterparts, all of which shall constitute one and the
same instrument.
OLD MUTUAL ABSOLUTE RETURN
INSTITUTIONAL FUND, L.L.C.
By:
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Name:
Title:
OLD MUTUAL INVESTMENT PARTNERS
By:
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Name:
Title:
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SCHEDULE A
MEMBER SERVICE PROVIDER AGREEMENT
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"), which is a
member firm of the Financial Industry Regulatory Authority, Inc. ("FINRA") has
an agreement with Old Mutual Absolute Return Institutional Fund, L.L.C. (the
"Fund"), pursuant to which it acts as the distributor for the sale of units of
limited liability company interests in the Fund ("Units") and facilitates and
assists in the provision by broker-dealers and other intermediaries of personal
investor services and account maintenance services. Capitalized terms not
defined herein shall have the meaning ascribed to them in the Fund's prospectus,
as amended or supplemented from time to time (the "Prospectus").
The Fund is a closed-end registered management investment company established as
a limited liability company under the laws of the State of Delaware. Units are
intended to be offered and sold by the Fund only to persons who meet the
standards of investor eligibility as set forth in the Prospectus and the
investor certifications (the "Investor Certification") (each, an "Eligible
Investor"). We have delivered or will deliver to the undersigned broker-dealer
(the "Selling Dealer" or "you"), for delivery to prospective purchasers of
Units, copies of the Prospectus, the Investor Certification, the organizational
documents and other relevant written information approved and furnished by the
Fund for use by such prospective purchasers in connection with their purchase of
Units (collectively, the "Offering Documents").
We hereby appoint you as a selling dealer with respect to the offering of Units,
and you hereby accept such appointment, upon the following terms and conditions:
1. In making available Units to your customers, you are acting as agent
for your customers. You agree on a non-exclusive basis to use reasonable
efforts to solicit and receive offers to purchase Units upon the terms and
conditions set forth in this Agreement and the Prospectus, provided that you
shall have no obligation to offer or sell any Units.
2. Orders received from you will be accepted through us only at the
public offering price applicable to each order, as set forth in the Prospectus.
The procedure relating to the handling of orders shall be subject to the terms
of this Agreement and instructions that we or the Fund shall forward from time
to time to you. All orders are subject to acceptance or rejection by the
Distributor or the Fund in the sole discretion of either, provided that, upon
any such rejection the Distributor or the Fund, as the case may be, shall
promptly advise you of such rejection. The minimum initial and subsequent
purchase requirements are as set forth in the Prospectus.
3. (a) You agree to provide the member services specified in ANNEX A
to your customers who own Units.
(b) In connection with the offer and sale of Units, we agree to pay you
the annual member servicing fees as specified in ANNEX B; provided, however,
that in no event shall we be required to pay any amounts in excess of: (i) the
member servicing fees actually paid by the Fund to us; and (ii) the FINRA cap
described in ANNEX B and in the Prospectus. Furthermore, beginning on the first
month in
8
which your customer ceases to hold Units, you shall no longer be entitled to any
member servicing fees in respect of such Units. If there is any conflict
between a term of ANNEX B and a term of the Prospectus, the term of the
Prospectus shall prevail. We represent that there is currently no conflict
between a term of ANNEX B and a term of the Prospectus. We agree to advise you
of, and to provide you with copies of, any amendments or supplements or
additions to the Offering Documents reasonably in advance of the filing (if
applicable) or first use thereof.
4. (a) You agree that any Units shall be offered and sold only in
accordance with the terms and conditions set forth in this Agreement and each of
the Offering Documents.
(b) You will only: (1) submit Investor Certifications to us on behalf of
prospective investors who you have determined, after reasonable inquiry, to be
Eligible Investors; and (2) solicit and receive offers to purchase Units (i)
only in the jurisdictions in which you and your employees maintain all licenses
and registrations necessary under applicable law and regulations (including the
rules of FINRA) to provide the services required to be provided by you under
this Agreement and (ii) in compliance with applicable state securities or Blue
Sky laws. You shall comply with all applicable laws, rules or regulations in
connection with your activities under this Agreement.
(c) You agree that: (1) you will keep records (and make them available to
us promptly upon request) of the information you relied on in concluding that a
prospective investor in the Fund is an Eligible Investor; and (2) you will
prohibit the use of offering materials for distribution to or use by prospective
purchasers of Units, other than the Offering Documents furnished by the Fund
unless you have obtained our prior written consent, which consent shall not be
unreasonably withheld.
(d) You shall not place orders for any Units unless you have already
received orders for such Units from your customers: (1) at the applicable public
offering price and subject to the terms of this Agreement, and the Prospectus;
and (2) who you reasonably believe meet all requirements to be eligible to
purchase Units at the time the order is submitted.
(e) You represent that in transmitting any order for Units that the
prospective investor for whom you transmit the order has signed the Investor
Certification and that you have determined that the Units are a suitable
investment for the prospective investor.
(f) You agree to deliver to each of your customers making purchases a copy
of the then current Prospectus prior to the time of offering or sale. Except to
the extent sent directly to investors by the Fund and subject to receipt of such
material from Distributor, you agree thereafter to deliver to such investors
copies of the annual and interim reports, and proxy solicitation and tender
offer materials of the Fund. You further agree in connection with any proxy
solicitation, to use reasonable best efforts to obtain proxies from such
purchasers and forward such proxies to the Fund. Copies of the Offering
Documents, as amended or supplemented from time to time, annual or interim
reports, and proxy solicitation and tender offer materials of the Fund will be
supplied to you in reasonable quantities upon your request and at the Fund's
expense.
(g) You agree, represent and warrant that, as of the date hereof and for
so long as this Agreement is in effect: (1) you are a broker-dealer registered
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and a
member in good standing with FINRA. You agree to notify us promptly if you
cease to be registered or licensed as a broker or dealer, or fail to be a member
in good standing of FINRA; (2) you are duly authorized to enter into this
Agreement, and this Agreement has been duly authorized, executed and delivered
by you and constitutes your legal, valid and binding agreement enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally, and by general principles
9
of equity; (3) neither the execution and delivery by you, nor the performance by
you of your obligations under this Agreement will contravene any provision of
applicable law or your certificate of formation or any agreement or other
instrument binding on you that is material to you or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over you
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by you of your
obligations under this Agreement, except such as may be required by the
securities or "blue sky" laws of the various States in connection with the offer
and sale of the Units; (4) you have been duly formed and are validly existing as
a __________________ in good standing under the laws of the State of
_____________ with power and authority to own your properties and conduct your
business and to enter into and perform your obligations under this Agreement;
(5) in connection with the offer, sale, or tender of Units, you shall be the
broker of record for such transactions between the Fund and your customers and
you shall comply with all applicable interpretations and guidance from FINRA and
with all the applicable Federal and State securities laws, including without
limitation, suitability, know your client, anti-money laundering, prospectus
delivery, furnishing confirmations pursuant to Rule 10b-10 under the 1934 Act,
and providing applicable point of sale disclosure to investors concerning the
amount of all compensation received or to be received by you in connection with
the sale of Units; and (6) you agree to promptly advise the Distributor if you
receive notice of any investor legal complaint, litigation initiated, or
communication by a regulatory authority which relates to the Fund or to a
transaction in Units by you on behalf of an investor, and you agree to provide
us information and documentation thereon as we may reasonably request, subject
to confidentiality obligations and proprietary rights.
(h) You agree to notify us promptly if you are not now a member of the
Securities Investor Protection Corporation or its successor ("SIPC"), or if at
any time during the term of this Agreement you cease being a member of SIPC.
(i) You hereby certify that you have established and maintain an
anti-money laundering ("AML") program that includes written policies, procedures
and internal controls reasonably designed to identify your clients and have
undertaken appropriate due diligence efforts to "know your customers" in
accordance with all applicable anti-money laundering regulations in your
jurisdiction including, where applicable, the USA PATRIOT Act of 0000 (xxx
"Xxxxxxx Xxx"). You represent and warrant that any money contributed to the
Fund by or on behalf of an investor introduced by you, will not be directly or
indirectly derived from activities that may contravene U.S. federal, state and
international laws and regulations including anti-money laundering laws and that
any investor introduced to the Fund by you shall not be a person or entity
listed in Executive Order 13224, Blocking Terrorist Property And Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,
or the Annex thereto, as published at xxxx://xxx.xxxxx.xxx/xxxxxxxxx.xxxx. You
further confirm that you will monitor for suspicious activity in accordance with
the requirements of the Patriot Act. You agree to provide us with such
information as we may reasonably request, including but not limited to the
filling out of questionnaires, attestations and other documents, to enable us to
fulfill our obligations under the Patriot Act, if any, and, upon our request.
Upon filing a Section 314 notice you agree to forward a copy to us, and further
agree to comply with all applicable requirements under the Patriot Act and
applicable implementing regulations concerning the use, disclosure, and security
of any information that is shared.
(j) You acknowledge that we are subject to the privacy regulations under
Title V of the Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. Sec. 6801 et seq., pursuant to
which regulations we are required to obtain certain undertakings from you with
regard to the privacy, use and protection of nonpublic personal financial
information of our clients or prospective clients. Therefore, notwithstanding
anything to the contrary contained in this Agreement, you agree that: (1) you
shall not disclose or use any Client Data except to the extent necessary to
carry out your obligations under this Agreement and for no other purpose; (2)
you shall not disclose Client Data to any third party, including, without
limitation, your third
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party service providers without our prior consent and an agreement in writing
from the third party to use or disclose such Client Data only to the extent
necessary to carry out your obligations under this Agreement and for no other
purposes; (3) you shall maintain, and shall require all third parties approved
under subsection (2) to maintain, effective information security measures to
protect Client Data from unauthorized disclosure or use; and (4) you shall
provide us with information regarding such security measures upon our reasonable
request and promptly provide us with information regarding any failure of such
security measures or any security breach related to Client Data. The
obligations set forth in this Section shall survive termination of the
Agreement. For the purposes of this Agreement, Client Data means the nonpublic
personal information (as defined in 15 U.S.C. Sec. 6809(4)) of our clients or
prospective clients (and/or our parent, affiliated or subsidiary companies)
received by you in connection with the performance of its obligations under the
Agreement, including, but not limited to: (i) an individual's name, address,
e-mail address, IP address, telephone number and/or social security number; (ii)
the fact that an individual has a relationship with us and/or our parent,
affiliated or subsidiary companies; or (iii) an individual's account
information.
(k) You shall not pay any commission, fee or other remuneration to any
person or entity (other than an employee) for soliciting any potential investor
in the Fund except pursuant to an arrangement which is approved by the Fund in
advance of such solicitation.
(l) We agree, represent and warrant that, as of the date hereof and for so
long as this Agreement is in effect: (1) we are duly authorized to enter into
this Agreement, and otherwise to act on behalf of the Fund pursuant to the
applicable distribution agreement of the Fund, or by some other proper
authority; (2) we are a broker-dealer registered under the 1934 Act and a member
of FINRA, that such membership has not been suspended, and that we agree to
maintain membership in FINRA; (3) in respect of the distribution of Units, we
agree to abide by the provisions of the Investment Company Act of 1940, as
amended, the 1933 Act, and the 1934 Act, and all applicable rules and
regulations of the Securities and Exchange Commission and FINRA, including
without limitation, the Rules of Conduct of FINRA; (4) this Agreement has been
duly authorized, executed and delivered by us and constitutes our legal, valid
and binding agreement enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally, and by general principles of equity;
(5) neither the execution and delivery by us, nor the performance by us of our
obligations under this Agreement will contravene any provision of applicable law
or our certificate of formation or operating agreement or any agreement or other
instrument binding upon us that is material to us or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over us,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by us of our
obligations under this Agreement, except such as may be required by the
securities or "blue sky" laws of the various States in connection with the offer
and sale of the Units; and (6) we have been duly formed and are validly existing
as a business trust in good standing under the laws of the State of Pennsylvania
with power and authority to own our properties and conduct our business and to
enter into and perform our obligations under this Agreement.
5. You shall indemnify and hold harmless the Distributor, the Fund and each
person affiliated with the Distributor or the Fund, and their respective
officers, directors, employees, partners and shareholders from and against any
loss, liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith), as incurred,
arising in connection with your violation of any of the provisions of this
Agreement.
6. As a Selling Dealer, you are hereby authorized: (1) to place orders
directly with the Fund for Units to be sold to your customers subject to the
applicable terms and conditions governing the placement of orders and subject to
the compensation provisions set forth in this Agreement and the
11
Prospectus, and (2) to arrange for the redemption or tender of Units by your
customers directly to the Fund or its tender agent subject to the applicable
terms and conditions set forth in this Agreement, the Prospectus and the
applicable tender offer.
7. Payment for Units purchased by your customers shall be made no later
than the settlement date specified in the confirmation by Federal Funds wire.
Payment may be made prior to the settlement date by Federal Funds wire to the
escrow agent as specified in the Prospectus. If such payment is not received by
us, we reserve the right, without notice, to cancel the purchase, and we may
hold you responsible for any direct loss suffered by us or by the Fund resulting
from your failure to make payment as aforesaid.
8. If any Units sold to your customers under the terms of this
Agreement are repurchased by the Fund or by us for the account of the Fund or
are tendered for redemption within seven days after the date of the confirmation
of the original purchase, it is agreed that you shall forfeit your right to, and
refund to us, any compensation received by you in respect of such Units. In
addition, if any Units sold to your customers under the terms of this Agreement
are repurchased by the Fund or by us for the account of the Fund or are tendered
for redemption within twelve months after the effective date of the original
purchase, it is agreed that you shall refund to us a pro-rata portion of the
compensation received by you (from us) in respect of such Units. The "pro-rata"
refunded portion shall be calculated based upon the number of months that the
Units were not held by your customer(s) during the first twelve month period
following the original purchase. (Thus, for example, if the Units were held
only for three months, then you will be obligated to refund 9/12ths or ths of
the compensation you received from us.)
9. No person is authorized to make any representations concerning Units
except those contained in the Offering Documents. In making Units available to
your customers you shall rely solely on the representations contained in the
Offering Documents and supplemental information above mentioned. Any information
that we furnish to you other than the Offering Documents, periodic reports and
proxy solicitation and tender offer material is our sole responsibility and not
the responsibility of the Fund, and you agree that the Fund shall not have any
liability or responsibility to you in these respects unless expressly assumed in
connection therewith. You shall not use through the internet or otherwise any
sales literature or advertisement regarding the Fund without our prior written
consent, which consent shall not be unreasonably withheld, unless it is solely a
listing of product offerings or has been provided by us for such purpose.
10. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Units entirely or to certain persons or
entities in a class or classes specified by us, provided that upon any such
suspension or withdrawal we shall immediately advise you of such suspension or
withdrawal. Each party hereto has the right to cancel this agreement upon
written notice to the other party. Cancellation will not affect any outstanding
order or transaction, or any legal right or obligations which may have arisen
prior to cancellation. Upon cancellation of this Agreement, we will continue to
pay you the compensation set forth in Section 3 for the duration of each of your
clients' investment in the Fund (subject to FINRA Conduct Rules) and, for
purposes hereof, you will be entitled to the compensation set forth in Section 3
with respect to any person introduced by you to us prior to cancellation who
invests in the Fund within the 60 days following cancellation. The provisions
of Sections 3, 5 and 12 will survive cancellation of this Agreement. This
Agreement may be amended with the prior written mutual agreement of each party
hereto.
11. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the offering of the Units.
Nothing contained in this paragraph is intended to operate as, and the
provisions of this paragraph shall not in any way whatsoever constitute, a
waiver by
12
either party of compliance with any provision of the 1933 Act, the Advisers Act,
or of the rules and regulations of the Securities and Exchange Commission issued
thereunder.
12. The parties agree to keep the terms of this Agreement confidential and
not to disclose such terms unless they are made public other than due to a
breach of this Section 12 by the affected party or as required by law in which
case the affected party shall give the other parties as is reasonably
practicable the right to contest such law and/or limit the scope of the required
disclosure.
13. We will be responsible for the filing with the States of
notifications of the intention to sell Units and will use our reasonable efforts
to file such notifications of the intention to sell Units in each jurisdiction
in which the Units are to be offered by you. We will inform you as to the
States in which such notifications of the intention to sell Units have been duly
made or where no such notification is required, but we otherwise assume no
responsibility or obligation as to your right to sell Units in any jurisdiction.
Units may only be offered or sold to U.S. persons in States where notifications
regarding the Units have been duly filed or where no such notifications are
required.
14. All representations, warranties and agreements contained in this
Agreement or contained in certificates of any party hereto submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by, or on behalf of, either party or any person who controls
any of the foregoing and shall survive delivery and be restated and reaffirmed
as of the placement of each order under this Agreement.
15. All communications to us shall be sent to the address below. Any notice
to you shall be duly given if mailed or faxed to you at the address specified by
you below.
16. Nothing in this Agreement shall limit our right to make other
arrangements with respect to the Units with any person, including the
appointment of other selling dealers.
17. No provision of this Agreement shall be construed in favor of or
against any party by reason of the extent to which any such party, its
affiliates or their respective employees or counsel participated in the drafting
thereof.
18. This Agreement represents the entire agreement between the parties and
supersedes any prior agreement entered into by the parties hereto (or their
respective predecessors) with respect to the Units. In the event that any
provision hereof is held to be invalid or unenforceable by any court of
competent jurisdiction, such invalidity shall be limited to the jurisdiction in
question, and such invalidity to the extent so held by such court.
19. This Agreement shall be governed by the laws of the State of
Pennsylvania without reference to conflicts of law principles.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date written below.
OLD MUTUAL INVESTMENT PARTNERS
By:
---------------------------------------
Title: ------------------------------------
Accepted:
-----------------------------
(authorized signature)
Firm Name: --------------------------------
Print Name: -------------------------------
Title: -------------------------------
Address: -------------------------------
Telephone: -------------------------------
Email Address: ----------------------------
Date: ----------------------------
Please sign both copies and return one copy via US Mail to:
Old Mutual Investment Partners
0000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn:
14
ANNEX A
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The following services constitute the member services referenced in Section
3(a) of this Agreement:
1. handling inquiries of your customers who own Units in the Fund
("Members") regarding the Fund (for example, responding to questions concerning
capital account balances and reports and tax information provided by the Fund);
2. assisting in the enhancement of communications from the Fund;
3. assisting in the establishment and maintenance of Member accounts with
the Fund;
4. assisting in the maintenance of records; and
5. providing such other information and Member services as we may reasonably
request.
A-1
ANNEX B
-------
Following the effective date of initial purchase of Units by investors you
introduced to the Fund, you shall be entitled to receive a monthly member
servicing fee at an annual rate of 0.25% of the aggregate value of such Units.
The fee shall be calculated based on the net asset value of the Units as of the
end of the applicable month and shall be payable in arrears within 30 days after
the end of such month.
Pursuant to limitations imposed by the Financial Industry Regulatory
Authority, Inc. ("FINRA"), the Member Servicing Fee will be capped at 6% of the
total proceeds proposed to be received by the Fund in respect of sales of Units
registered under the Fund's current registration statement on Form N-2 (the
"Offering Proceeds"). In addition, pursuant to limitations imposed by FINRA, to
the extent you receive any additional discretionary compensation from us, the
Fund's investment adviser or its affiliates, such additional compensation will
be capped at 2% of the Offering Proceeds.
B-1
SCHEDULE B
[TO COME]
