Exhibit 99(h)(i)
GENERAL DISTRIBUTOR'S AGREEMENT
by and between
MAN INVESTMENTS INC.
and
MAN-GLENWOOD LEXINGTON, LLC
AGREEMENT, made as of the __ day of ________, 2003, by and between
Man-Glenwood Lexington, LLC and Man Investments Inc.
RECITAL
WHEREAS, Man-Glenwood Lexington, LLC, a Delaware limited liability
company ("Lexington"), is registered as a closed-end, non-diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and is registering $100,000,000 in units of its limited liability
company interests ("Units") under the Securities Act of 1933, as amended (the
"1933 Act"), to be offered for sale in a public offering in accordance with the
terms and conditions set forth in the Prospectus (the "Prospectus") and
Statement of Additional Information (the "SAI") included in Lexington's
Registration Statement filed with the Securities and Exchange Commission on Form
N-2, as it may be amended from time to time.
In this connection, Lexington desires that Man Investments Inc. (the
"General Distributor") act as General Distributor for the sale and distribution
of Units that have been registered as described above and of any additional
Units that may become registered during the term of this Agreement.
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. Appointment of General Distributor.
Lexington hereby appoints you as the sole general distributor of Units
in connection with the aforesaid public offering of Units, and Lexington further
agrees from and after the date of this Agreement, that it will not, without your
consent, sell or agree to sell any Units otherwise than through you, except (a)
Lexington may itself sell Units without sales charges as an investment to the
officers, trustees or directors and bona fide present and former full-time
employees of Lexington and to other investors who are identified in the
Prospectus and SAI as having the privilege to buy Units at the public offering
price described in the Prospectus; (b) Lexington may issue Units in connection
with a merger, consolidation or acquisition of assets on such basis as may be
authorized or permitted by the 1940 Act and the rules thereunder; and (c)
Lexington may issue Units in connection with the reinvestment of distributions
made by Lexington or of any other investment company if permitted by the
Prospectus and SAI.
2. Sale of Units.
You agree to serve as the general distributor of Units in accordance
with the terms of this Agreement, and to offer Units to investors as agent of
Lexington either directly or through broker-dealers which enter into selling
agreements with you. In connection with the offering of Units, you further agree
that:
(a) You will use your best efforts to sell Units, provided,
however, that when requested by Lexington at any time because of market or other
economic considerations or abnormal circumstances of any kind, or when agreed to
by mutual consent between you and Lexington, you will suspend such efforts.
Lexington may also withdraw the offering of Units at any time when required by
the provisions of any statute, order, rule or regulation of any governmental
body having jurisdiction. It is understood that you do not undertake to sell all
or any specific number or amount of Units.
(b) You will not make offers or sales of Units except in the
manner set forth in Lexington's Registration Statement, and specifically agree
that if an investor qualifies for a reduced sales charge, You will offer and
sell Units to that investor at the reduced sales charge. We have established
procedures that are to be followed in connection with the offer and sale of
Units and you agree not to make offers or sales of any Units and agree to
require all broker-dealers that enter into selling agreements with you not to
make any such offers or sales except in compliance with such procedures. In this
regard, you agree that:
(i) No sale of Units to any one investor will be for less than the
minimum amount as may be specified in the Prospectus or as Lexington shall
advise you.
(ii) No offer or sale of Units will be made in any state or
jurisdiction, or to any prospective investor located in any state or
jurisdiction, where Units have not been registered or qualified for offer and
sale under applicable state securities laws unless Units are exempt from the
registration or qualification requirements of such laws.
(iii) Sales of Units will be made only to "Qualified Investors" as
described in the Prospectus, and that any such investor is not on the List of
Specially Designated Nationals and Blocked Persons published by the Office of
Foreign Assets Control of the United States Department of Treasury, as such list
may be amended from time to time, and does not reside or have a business in any
jurisdiction identified by the Office of Foreign Assets Control.
(c) You will furnish to prospective investors only such
information concerning Lexington and the offering of Units as may be contained
in the Prospectus and SAI or any written supplements thereto, and such other
materials as you have prepared and which comply with applicable laws and
regulations. For purposes of the offering of Units, Lexington will furnish to
you at your expense copies of the Prospectus and the SAI which shall be
furnished by you to prospective investors as required by applicable law and
regulations. Additional copies of the Prospectus and the SAI will be furnished
in such numbers as you may reasonably request for purposes of the offering.
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(d) The closing of the initial offering of Units will occur on
such date as we shall agree. Thereafter, Units shall be offered and made
available for purchase on a basis as described in the Prospectus and SAI or on
such other basis as may be determined by Lexington.
3. Sales Charge.
Units shall be sold by you at the public offering price described in
the Prospectus, including a front-end sales charge not in excess of 3% of the
offering price, but which front-end sales charge shall be reduced or eliminated
under certain other circumstances or with respect to certain types of investors,
in each case on the basis set forth in the Prospectus and SAI. You may re-allow
all or any portion of the front-end sales charge to broker-dealers as you may
determine, and you (or one of your affiliates) may make payments of such
additional selling compensation to broker-dealers through which sales are made,
as you may determine, from your own resources (such dealers and brokers shall
collectively include all domestic or foreign institutions eligible to offer and
sell the Units).
4. Purchase of Units.
(a) As General Distributor, you shall have the right to accept or
reject orders for the purchase of Units at your discretion. Any consideration
that you may receive in connection with a rejected purchase order must be
returned promptly.
(b) You agree promptly to issue, or to cause the duly appointed
agent of Lexington to issue, confirmations of all accepted purchase orders and
to transmit a copy of such confirmations to Lexington. The full subscription
amounts payable in connection with each order for the purchase of Units by an
investor shall be transmitted by you or by the selling dealer to Lexington's
escrow agent, including applicable sales charges, within the periods specified
in the Prospectus and SAI.
5. 1933 Act Registration.
Lexington agrees that it will use its best efforts to maintain the
effectiveness of the Registration Statement under the 1933 Act. Lexington
further agrees to prepare and file any amendments to the Registration Statement
as may be necessary and any supplemental data in order to comply with the 1933
Act.
6. 1940 Act Registration.
Lexington is registered under the 1940 Act as a closed-end management
investment company, and will use its best efforts to maintain such registration
and to comply with the requirements of the 1940 Act. Lexington further agrees to
prepare and file any amendments to the Registration Statement as may be
necessary and any supplemental data in order to comply with the 1940 Act.
7. State Blue Sky Qualification.
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At your request, Lexington will take such steps as may be necessary and
feasible to qualify Units for sale in states, territories or dependencies of the
United States, the District of Columbia, and the Commonwealth of Puerto Rico, in
accordance with the laws thereof, and to renew or extend any such qualification;
provided, however, that Lexington shall not be required to qualify Units or to
maintain the qualification of Units in any jurisdiction where it shall deem such
qualification disadvantageous to Lexington.
8. Duties of General Distributor.
You agree that:
(a) You shall furnish to Lexington any pertinent information
required to be inserted with respect to you as General Distributor within the
purview of the Securities Act of 1933 in any reports or registrations required
to be filed with any governmental authority;
(b) You will not make any representations inconsistent with the
information contained in the Prospectus and SAI;
(c) You shall maintain such records as may be reasonably required
for Lexington or its investor servicing agent to respond to member requests or
complaints, and to permit Lexington to maintain proper accounting records, and
you shall make such records available to Lexington and its investor servicing
agent upon request;
(d) In performing your duties under this Agreement, you shall
comply with all requirements of Lexington's Prospectus and SAI and all
applicable laws, rules and regulations with respect to the purchase, sale and
distribution of Units; and
(e) Notwithstanding anything to the contrary in this Agreement,
you: (i) maintain anti-money laundering policies that comply with the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 and applicable Federal anti-money laundering
regulations, including steps to verify the identity of prospective subscribers
("AML Laws, Regulations and Policies"); (ii) comply with such AML Laws,
Regulations and Policies; (iii) will promptly deliver to Lexington's investment
adviser's Money Laundering Reporting Officer notice of any such AML Laws,
Regulations and Policies violation, suspicious activity, suspicious activity
investigation or filed Suspicious Activity Report that relates to any
prospective subscriber for, or purchaser of, Units; and (iv) will cooperate with
and deliver information reasonably requested concerning subscribers that
purchased Units necessary to comply with such AML Laws, Regulations and
Policies.
9. Liability.
To the extent consistent with applicable law, the General Distributor
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by Lexington in connection with the matters to which this Agreement
relates, except a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties, from reckless disregard
of its obligations and duties under this Agreement, or from
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its failure to comply with laws, rules and regulations applicable to it in
connection with its distribution of the Units.
10. Disclaimer of Manager and Member Liability.
The General Distributor understands and agrees that the obligations of
Lexington under this Agreement are not binding upon any Manager or member of
Lexington personally, but bind only Lexington and Lexington's property; the
General Distributor represents that it has notice of the provisions of the
Limited Liability Company Agreement of Lexington disclaiming Manager and member
liability for acts or obligations of Lexington.
11. Indemnification.
To the extent consistent with applicable law, Lexington agrees to
indemnify, defend and hold the General Distributor and its affiliates and
brokers and their affiliates that have entered into selling agreements with the
General Distributor 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 the General Distributor and its affiliates and
brokers and their affiliates that have entered into selling agreements with the
General Distributor may incur, as the result of acting as distributor for
Lexington, under the 1933 Act or under common law or otherwise, arising out of
or based upon (i) any untrue statement, or alleged untrue statement, of a
material fact contained in Lexington's Registration Statement, (ii) any
omission, or alleged omission, to state a material fact required to be stated in
Lexington's Registration Statement to make the statements in either thereof not
misleading or (iii) any Lexington-related advertisement or sales literature that
is not in compliance with applicable laws, rules or regulations (including, but
not limited to the Conduct Rules of the National Association of Securities
Dealers, Inc.); provided, however, that Lexington's agreement to indemnify the
General Distributor and its affiliates and brokers and their affiliates that
have entered into selling agreements with the General Distributor shall not be
deemed to cover any claims, demands, liabilities or expenses arising out of any
statements or representations as are contained in Lexington's Registration
Statement, advertisements or sale literature furnished in writing to Lexington
by the General Distributor and used in Lexington's Registration Statement,
advertisements or sales literature, or arising out of or based upon any omission
or alleged omission to state a material fact in such written information
furnished by the General Distributor which is required to be stated or necessary
to make the information not misleading.
In the event of a formal legal action, Lexington shall be provided with
written notice of an action brought against the General Distributor or its
affiliates or brokers or their affiliates that have entered into selling
agreements with the General Distributor, promptly following receipt of service
of the summons or other first legal process. Any failure to promptly notify
Lexington will relieve Lexington from any liability which it may have to the
person against whom such action is brought, or to any other person, by reason of
any such untrue, or alleged untrue, statement or omission, or alleged omission
for reasons other than on account of Lexington's indemnity obligations under
this section if that delay materially prejudices Lexington's ability to defend
against the action. Lexington
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will be entitled to assume the defense of any such action brought to enforce any
such claim, demand or liability if such defense shall be conducted by counsel of
good standing approved by the General Distributor or its affiliates or brokers
or their affiliates that have entered into selling agreements with the General
Distributor, which approval shall not be unreasonably withheld. In the event
Lexington elects to assume the defense of any such suit and retain counsel of
good standing so approved, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by any of them; but in
any case where Lexington does not elect to assume the defense of any such suit
or in case the General Distributor or its affiliates or brokers or their
affiliates that have entered into selling agreements with the General
Distributor reasonably withhold approval of counsel chosen by Lexington,
Lexington will reimburse the General Distributor and its affiliates and brokers
and their affiliates that have entered into selling agreements with the General
Distributor named as defendant or defendants in such suit, for the reasonable
fees and expenses of any counsel retained by them.
12. Allocation of Costs.
Lexington shall pay the cost of composition and printing of sufficient
copies of its Prospectus and SAI as shall be required for periodic distribution
to its members and the expense of registering Units for sale under federal
securities laws and for qualifying such Units under state blue sky laws pursuant
to paragraph 7. You shall pay the expenses normally attributable to the sale of
Units, other than those to be paid by Lexington, including the cost of printing
and mailing of the Prospectus (other than those furnished to existing investors)
and any sales literature used by you in the public sale of Units.
13. Duration.
This Agreement will take effect on the date first set forth above.
Unless earlier terminated pursuant to paragraph 14 hereof, this Agreement shall
remain in effect for a period of two (2) years from such date and thereafter
from year to year, so long as such continuance shall be approved at least
annually by the Board, including the vote of the majority of the Managers who
are not parties to this Agreement or "interested persons" (as defined by the
1940 Act and the rules thereunder) of any such party, cast in person at a
meeting called for the purpose of voting on such approval.
14. Termination.
This Agreement may be terminated (i) by the General Distributor at any
time without penalty upon sixty days' written notice to Lexington (which notice
may be waived by Lexington); or (ii) by Lexington at any time without penalty
upon sixty days' written notice to the General Distributor (which notice may be
waived by the General Distributor).
15. Amendment and Assignment.
Any amendment to this Agreement shall be in writing and shall be
subject to the approval of the Board, including the vote of a majority of the
Managers who are not "interested persons," as defined by the 1940 Act and the
rules thereunder, of Lexington or
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the General Distributor. This Agreement shall automatically and immediately
terminate in the event of its "assignment," as defined by the 1940 Act and the
rules thereunder.
16. Section Headings.
The headings for each section are for descriptive purposes only, and
such headings are not to be construed or interpreted as part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Man-Glenwood Lexington, LLC
By:
----------------------------
Name:
Title:
Man Investments Inc.
By:
----------------------------
Name:
Title:
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