Exhibit
(h)(2)
PARALEL
DISTRIBUTORS LLC
FORM
OF DEALER AGREEMENT
This
agreement is effective as of _________________, [ ], and made by Paralel Distributors LLC (“Distributor”)
and [DEALER NAME] (“Dealer” and, together with Distributor, the “Parties”).
WHEREAS,
Xxxxxx Secondaries Private Equity Opportunities Fund (the “Company” or the “Fund”) is registered under the Investment
Company Act of 1940 (“1940 Act”), as a closed-end management investment company and is authorized to issue shares of beneficial
interest (“Shares”);
WHEREAS,
Distributor serves as principal underwriter in connection with the offering and sale of the Shares pursuant to a distribution agreement
(“Distribution Agreement”); and
WHEREAS,
Dealer desires to serve as a selected dealer of the Fund.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants contained herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the Parties, intending to be legally bound, do hereby agree as follows:
| 1. | Dealer.
Dealer represents that it is a broker-dealer properly registered and qualified under all
applicable federal, state and local laws to engage in the business and transactions described
in this agreement and is a member in good standing of the Financial Industry Regulatory Authority
(“FINRA”) and the Securities Investor Protection Corporation (“SIPC”).
Dealer agrees that any obligations arising in connection with this agreement under FINRA
Rule 2111 (the “Suitability Rule”) and/or Rule 15l-1 under the Securities Exchange
Act of 1934, as amended (“Regulation Best Interest”) shall be the responsibility
of Dealer and not of the Fund or Distributor. Dealer agrees that it is responsible for recommending
Shares to a customer only if it has determined that the recommendation is, as applicable,
suitable for the customer in accordance with the requirements under the Suitability Rule
or in the best interests of the customer in accordance with the requirements under Regulation
Best Interest, and that neither the Fund nor Distributor has any responsibility for such
determination. Dealer shall also be responsible for communicating all necessary information
to its customers regarding whether recommended Shares are, as applicable, in the best interest
of, or a suitable investment for, such customers, including, without limitation, information
regarding the limited liquidity of the Shares as referenced in the Prospectus (defined below).
Dealer shall maintain all records required by Applicable Laws (as defined below) or that
are otherwise reasonably requested by Distributor relating to Dealer’s transactions
in Shares. Dealer will upon request by the Fund or Distributor promptly make such records
available to such requesting party. In addition, Dealer shall notify Distributor immediately
in the event Dealer’s status as a member of FINRA or SIPC changes. Dealer shall at
all times comply with (i) the provisions of this agreement related to compliance with all
applicable rules and regulations and (ii) the terms of each registration statement and prospectus
for the Fund. |
| 2. | Qualification
of Shares. The Fund will make available to Dealer a list of the states or
other jurisdictions in which Shares are registered for sale or are otherwise qualified for
sale, which may be revised by the Fund from time to time. Dealer will make offers of Shares
to its eligible customers only in those states and will ensure that it (including its associated
persons) is appropriately licensed and qualified to offer and sell Shares in any state or
other jurisdiction that requires such licensing or qualification in connection with its activities. |
| 3. | Orders.
All orders Dealer submits for transactions in Shares shall reflect orders received from
its customers or shall be for its account for its own bona fide investment. The procedures
relating to all orders and the handling of each order (including the manner of computing
the net asset value of Shares and the effective time of orders received from Dealer) are
subject to: (i) the terms of the then-current Fund prospectus (the “Prospectus,”
which for purposes of this agreement includes any supplements, stickers or amendments thereto
and the Statement of Additional Information incorporated therein); and (ii) the subscription
or application documents for the Fund, as supplemented or amended from time to time; and
to the extent that |
the Prospectus contains provisions that are inconsistent with this agreement or any other document, the terms of the Prospectus shall
control. Xxxxxx agrees to record on the order the date on which all orders for the purchase of Shares are received by it,
and to forward promptly such orders to the Fund or the transfer agent in time for processing at the public offering price next determined
after receipt of such orders by Dealer, in each case as described in the Prospectus. As agent for its customers, Dealer shall
not withhold placing customers’ orders for any Shares so as to profit Dealer or its customers as a result of such withholding.
Subject to the terms and conditions set forth in the Prospectus and any operating procedures and policies established by Distributor
or the Fund (directly or through its transfer agent) from time to time, Dealer is hereby authorized to place orders directly with the
Fund for the purchase of Shares. All purchase orders Dealer submits are subject to acceptance or rejection, and Distributor reserves
the right to suspend or limit the sale of Shares. It is expected that Shares will be offered in a periodic continuous offering at net
asset value (“NAV”), and certain Share classes may have an additional front-end sales charge. Dealer acknowledges and agrees,
however, that there is no assurance that the Fund will engage in a continuous offering of Shares and may determine not to do so in its
sole discretion. Dealer is not authorized to make any representations concerning Shares except such representations as are contained
in the Prospectus and in such supplemental written information that the Fund or Distributor (acting on behalf of the Fund) may provide
to Dealer with respect to the Fund. All orders that are accepted for the purchase of Shares shall be executed at NAV per share on the
next relevant subscription date, less any applicable charges and expenses for which the Fund has determined to charge shareholders as
permitted by applicable law and described in the Prospectus.
| 4. | Compliance
with Applicable Laws; Distribution of Prospectus and Reports; Confirmations. In
connection with its respective activities hereunder, each Party shall abide by the Conduct
Rules of FINRA and all other rules of self-regulatory organizations of which it is a member,
as well as all laws, rules and regulations, including federal and state securities laws,
that are applicable to it (and its associated persons) from time to time in connection with
its activities hereunder (“Applicable Laws”). Dealer is authorized to distribute
to Dealer’s customers the current Prospectus, as well as any supplemental sales material
received from the Fund or Distributor (acting on behalf of the Fund) (on the terms and for
the period specified by Distributor or stated in such material). Dealer is not authorized
to distribute, furnish or display any other sales or promotional material relating to the
Fund without Distributor’s prior written approval, but Dealer may identify the Fund
in a listing of closed-end funds available through Dealer to its customers. Unless otherwise
mutually agreed in writing, Dealer shall deliver or cause to be delivered to each customer
who purchases Shares from or through Dealer, copies of all annual and interim reports, proxy
solicitation materials, and any other information and materials relating to the Fund and
prepared by or on behalf of the Fund or Distributor. If required by Rule 10b-10 under the
Securities Exchange Act of 1934, as amended or other Applicable Laws, Dealer shall send or
cause to be sent confirmations or other reports to its customers containing such information
as may be required by Applicable Laws. |
| 5. | Concessions
and Other Compensation. On each purchase of Shares by Dealer or its customer
(but not including the reinvestment of any dividends or distributions), Dealer shall be entitled
to receive such dealer allowances, concessions, or other compensation, if any, as may be
set forth in the Prospectus. Dealer represents that it is eligible to receive any such concessions
paid to it under this section. |
| 6. | Transactions
in Shares. Dealer agrees that payment for orders it submit for the purchase
of Shares will be made in accordance with the terms of the Prospectus. Dealer
acknowledges and agree that the then-current price per Share, which is equal to the NAV per
share for the applicable class of Shares, will generally not be known until after the acceptance
of subscriptions by the Fund in accordance with the terms of the Prospectus. The
Parties thus each acknowledge and agree that purchase orders for Shares will be made and
accepted for an amount based on the then-current NAV per Share for the applicable class of
Shares, with the number of Shares to be credited to an investor’s account determined
upon finalization of the then-current NAV. If payment for any purchase order is
not received in accordance with the terms of the Prospectus, the Fund reserves the right,
without notice, to cancel the sale. In this event or in the event that Dealer
cancels the trade for any reason, Dealer agrees to be responsible for any loss resulting
to the Fund or to Distributor from |
its
failure to make payments as aforesaid. Dealer shall not be entitled to any gains generated thereby. Dealer acknowledges
that tender offers for the repurchase of Shares are (i) currently the only method by which Shares may be repurchased or redeemed by the
Fund, (ii) there is no guarantee that any tender offer will be made nor the amount or terms of such possible tender offers, and (iii)
any tender offers, if made, will be made subject to the terms summarized in the Prospectus and tender offer documents provided by the
Fund and approved by the Board. Dealer expressly acknowledges that Shares will not be repurchased by Distributor or the Fund (other than
through tender offers from time to time, if any), that there is no guarantee that any Shares tendered will be repurchased by the Fund,
and that no secondary market for the Shares exists currently or is expected to develop. If a tender offer is made by the Fund, Dealer
agrees to transmit to its customers the appropriate documentation for such offers to its customers and participate in the tender offer
process in accordance with the terms of the Prospectus and any tender offer documents applicable to such offer.
| 7. | Accuracy
of Orders; Customer Signatures. Dealer shall be responsible for the accuracy,
timeliness and completeness of any orders transmitted by it on behalf of its customers by
any means, including wire or telephone. In addition, Dealer shall guarantee the signatures
of its customers when such guarantee is required by the Company, and Dealer shall indemnify
and hold harmless all persons, including Distributor and the Fund’s transfer agent,
from and against any and all loss, cost, damage or expense suffered or incurred in reliance
upon such signature guarantee. |
| 8. | Indemnification. Dealer
agrees to indemnify and hold harmless Distributor, its officers, directors, agents and employees
from and against any claims, liabilities, expenses (including reasonable attorneys’
fees) and/or losses resulting from (i) any failure by Dealer to comply with Applicable Laws
in connection with activities performed under this agreement, (iii) any breach of Dealer
of its obligations, representations, warranties or covenants contained in this agreement
(iii) any unauthorized representation made by Dealer concerning an investment in Shares,
or (iv) any other act or omission of Dealer taken with willful misfeasance, bad faith, reckless
disregard, or gross negligence in connection to this agreement. |
Distributor
agrees to indemnify and hold harmless Dealer and its officers, directors, agents and employees from and against any claims, liabilities,
expenses (including reasonable attorney’s fees) and. losses resulting directly from (i) any failure by Distributor to comply with
Applicable Laws in connection with its activities as distributor under this Agreement, (ii) any untrue statement of a material fact set
forth in the Fund’s Prospectus or supplemental sales material provided by Distributor to Dealer (and used by Dealer on the terms
and for the period specified by Distributor or stated in such material), or omission to state a material fact required to be stated therein
to make the statements therein not misleading, or (iii) any other act or omission of Distributor taken with willful misfeasance, bad
faith, reckless disregard, or gross negligence in connection to this agreement.
| 9. | Anti-Money
Laundering Compliance. Each Party to this agreement acknowledges that it is a financial
institution subject to the Bank Secrecy Act ("BSA"), as amended by The International
Money Laundering Abatement and Financial Anti-Terrorism Act of 2002, Title III of the USA
PATRIOT Act (the “PATRIOT Act"), its implementing regulations, and related SEC
and SRO rules, and any regulations thereunder (collectively, the “AML Acts”),
which require, among other things, that financial institutions adopt compliance programs
to guard against money laundering. Each party represents and warrants that it is in compliance
and will continue to comply with the AML Acts, including FINRA Rule 3310, in all relevant
respects. Dealer agrees to cooperate with Distributor to satisfy AML due diligence policies
of the Fund and Distributor, which may include annual compliance certifications and periodic
due diligence reviews and/or other requests deemed necessary or appropriate by Distributor
or the Fund to ensure compliance with AML Acts. Dealer also agrees to provide
for screening its own new and existing customers against the Office of Foreign Asset Control
list and any other government list that is or becomes required under the AML Acts. |
| | | |
| | 10. | Privacy. The
Parties agree that any “Non-public Personal Information,” as the term is defined
in Regulation S-P (“Reg S-P”) of the SEC, that may be disclosed
hereunder is disclosed for the specific purpose of permitting the other party to perform
the services set forth in this agreement. Each Party agrees that, with respect
to |
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information, it will comply with Reg S-P and that it will not disclose any Non-Public Personal
Information received in connection with this agreement to any other party, except to the
extent required to carry out the services set forth in this agreement or as otherwise permitted
by law. |
| 11. | Multi-Class
Distribution Arrangements. Dealer understands and acknowledges that the Fund may offer
Shares in multiple classes, and Dealer represents and warrants that it has established compliance
procedures designed to ensure that its customers are made aware of the terms of each available
class of Shares, to ensure that each customer is offered only Shares that are suitable investments
for him or her and to ensure proper supervision of its representatives in recommending and
offering the Shares of multiple classes to its customers. |
| 12. | Distribution
and Servicing Fees. Subject to and in accordance with the terms of the Prospectus and
the Distribution and Servicing Plan (“Plan”), if any, adopted by resolution of
the Fund’s board of trustees, which operates in a manner consistent with Rule 12b-1
under the 1940 Act, Distributor may pay certain financial institutions, including Dealer,
such fees under the Plan as may be determined, for distribution, shareholder or administrative
services, as described in the Plan and below: |
| a. | Dealer
shall furnish sales and marketing services and/or shareholder services to Dealer’s
customers who invest in and own Shares, including, but not limited to, answering routine
inquiries regarding the Fund, processing shareholder transactions, and providing any other
shareholder services not otherwise provided by the Fund’s transfer agent. The Fund
reserves the right, without prior notice, to suspend, adjust or eliminate the payment of
such Plan and any payments or other Dealer compensation thereunder by amendment, sticker
or supplement to the then-current Prospectus of the Fund or other written notice to Dealer.
Distributor may cease payment of any fees under the Plan upon its termination or amendment
and Dealer will have no recourse or claim to any fees in such situation. |
| b. | With
respect to payments to Dealer under the Plan, Distributor shall have only the obligation
to make payments to Dealer after, for as long as, and to the extent that Distributor receives
from the Fund an amount equivalent to the amount payable to Dealer. If applicable, Dealer
hereby authorizes Distributor to pay Dealer’s designated clearing agent (“Clearing
Agent”) such fees set forth under this section on Dealer’s behalf. In such case,
Dealer acknowledges and agrees that after Distributor has made payment of such fees to Dealer’s
Clearing Agent on Dealer’s behalf: (i) Dealer’s Clearing Agent is solely responsible
and liable for direct payment of such fees to Dealer, and Distributor will not pay Dealer
directly, (ii) Distributor cannot guarantee payment by Dealer’s Clearing Agent of such
fees to Dealer, and (iii) should Dealer not receive payment of such fees from Dealer’s
Clearing Agent for any reason, Dealer’s sole recourse is against Dealer’s Clearing
Agent. |
| c. | Any
such fee payments shall reflect the amounts described in the Fund’s Prospectus and
the Plan. Payments will be based on the average daily net assets of Shares which are owned
by those customers of Dealer whose records, as maintained by the Fund or the transfer agent,
designate Dealer’s firm as the customer’s dealer of record. No such fee payments
will be payable to Dealer with respect to Shares purchased by or through Dealer and redeemed
by the Fund within seven (7) business days after the date of confirmation of such purchase,
or such other timeframe as set forth in the Fund’s Prospectus or the Plan. Dealer represents
that Dealer is eligible to receive any such payments made to Dealer under the Plan. |
| d. | The
provisions of this Agreement relating to the Plan, shall continue in full force and effect
only so long as the continuance of the Plan and the provisions of this Agreement are approved
at least annually by a vote of the Fund’s Board, including a majority of the Board
who are not interested persons of the Fund and who have no direct or indirect financial interest
in the operation of the Plan or in any agreements related to the Plan, cast in person at
a meeting called for the purpose of voting thereon. |
| 13. | Amendments;
Termination. Distributor may change or amend any provision of this Agreement by giving
Broker/Dealer written notice, in accordance with Section 15 hereto, of the change or amendment.
Amendments to Section 12 may be made by Distributor or by amendment or termination of the
Plan by the Fund. |
| 14. | Assignment;
Termination. This Agreement shall inure to the benefit of the successors and
assigns of either Party hereto, provided, however, that Dealer may not assign this Agreement
without Distributor’s prior written consent. This Agreement may be terminated
by either party, without penalty, upon sixty days’ prior written notice to the other
party. Any unfulfilled obligations hereunder, and all obligations of indemnification,
shall survive the termination of this agreement. |
| 15. | Notices.
All notices required or permitted to be given under this Agreement shall be given in
writing and delivered by personal delivery, by postage prepaid mail, or by email or a similar
means of same day delivery (with a confirming copy by mail). All notices to Distributor shall
be given or sent Distributor at its offices located at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx
XX 00000, Attn: General Counsel, email: xxxxxxxxxxx@xxxxxxx.xxx
All notices to Dealer shall be given or sent to Broker/Dealer at the address specified by
Broker/Dealer herein. Each party may change the address to which notices shall be sent by
giving notice to the other party in accordance with this paragraph. Email notices shall be
deemed received when acknowledged, which shall not be unreasonably withheld. |
| 16. | Authorization. Each
Party represents to the other that all requisite corporate proceedings have been undertaken
to authorize it to enter into and perform under this agreement as contemplated herein, and
that the individual that has signed this agreement below on its behalf is a duly elected
officer that has been empowered to act for and on behalf of such party with respect to the
execution of this agreement. |
| 17. | Arbitration.
In the event of a material dispute under this Agreement, such dispute shall be settled by
arbitration before arbitrators sitting in Denver, Colorado, in accordance with the FINRA's
Code of Arbitration Procedures in effect at the time of the dispute. The arbitrators shall
act by majority decision, and their award may allocate attorneys' fees and arbitration costs
between Distributor and Dealer. The arbitrators' award shall be final and binding between
the Parties, and such award may be entered as a judgment in any court of competent jurisdiction. |
| 18. | Miscellaneous.
This Agreement supersedes any other agreement between the parties with respect to the
offer and sale of Shares and other matters covered herein. The invalidity or unenforceability
of any term or provision hereof shall not affect the validity or enforceability of any other
term or provision hereof. This Agreement may be executed in any number of counterparts,
which together shall constitute one instrument. This Agreement shall be governed
by and construed in accordance with the laws of the state of Colorado without regard to conflict
of laws principles, and shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns. |
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties' authorized representatives have executed this Agreement and represent that they have read and understand
the obligations herein and agree to be bound by the Agreement's terms and conditions.
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Paralel
Distributors LLC
