Exhibit e
FORM OF PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT, dated as of -----------------, by and between
--------------(the "Trust"), a trust organized under the laws of the State of
New York, and Xxxxxxx Xxxxx Xxxxxx, Inc., a New York corporation ("Placement
Agent").
WHEREAS, the Trust engages in business as an open-end management
investment company and is registered as such under the Investment Company Act
of 1940, as amended (the "1940 Act");
WHEREAS, the Trust is divided into shares of beneficial interest ("Trust
Interests");
WHEREAS, the Trust wishes to retain the services of a placement agent for
the Trust Interests;
WHEREAS, Placement Agent has agreed to act as Placement Agent of the Trust
Interests;
NOW, THEREFORE, it is hereby agreed between the parties hereto as follows:
1. Appointment of Placement Agent.
(a) The Trust hereby appoints Placement Agent as its placement agent for
the Trust Interests and Placement Agent hereby accepts such appointment.
Placement Agent agrees that it shall perform its activities as placement agent
in accordance with all applicable laws, rules and regulations. In acting as
placement agent under this Agreement, Placement Agent shall not make any offer
or sale of Trust Interests in a manner that would require the Trust Interests
to be registered under the Securities Act of 1933, as amended (the "1933 Act").
(b) Placement Agent shall perform such specified activities and conduct
all of its activities as Placement Agent of Trust Interests, including any
activities described herein, as set forth in the Operating Policies and
Procedures (the "Operating Procedures") of the Trust (in such form as may be
approved from time to time by the Trust's Board of Trustees). To the extent
that any provision of this Agreement shall conflict with any provision of the
Operating Procedures, the applicable provision of the Operating Procedures
shall be deemed to govern.
(c) Placement Agent is not authorized by the Trust to give any information
or make any representations regarding Trust Interests, except such information
or representations as are contained in the then-current registration statement
of the Trust filed with the Securities and Exchange Commission (the
"Registration Statement").
(d) No Trust Interests shall be offered by either Placement Agent or the
Trust under this Agreement, and no orders for the purchase or sale of such
Trust Interests hereunder shall be accepted by the Trust, if and so long as the
effectiveness of the Trust's Registration Statement as to such Trust Interests
or any necessary amendments thereto shall be suspended under any of the
provisions of the 1940 Act; provided, however, that nothing contained in this
paragraph (d) shall in any way restrict the Trust's obligation to redeem Trust
Interests from any investor in accordance with the provisions of the
Registration Statement or the Trust's Declaration of Trust, as amended from
time to time.
(e) Nothing herein shall be construed to require the Trust to accept any
offer to purchase any Trust Interests, all of which shall be subject to
approval by the Trust's Board of Trustees.
2. Furnishing of Information.
(a) The Trust shall furnish to Placement Agent copies of any information,
financial statements and other documents that Placement Agent may reasonably
request for use in connection with the sale of Trust Interests under this
Agreement. The Trust shall also furnish Placement Agent upon request with (i)
unaudited semi-annual statements of the Trust's books and accounts prepared by
the Trust, and (ii) from time to time such additional information regarding the
Trust's financial or regulatory condition as Placement Agent may reasonably
request.
(b) The Trust agrees to advise Placement Agent immediately in writing:
(i) of any request by the Securities and Exchange Commission
(the "Commission") for amendments to any registration statement or
for additional information;
(ii) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of any such registration statement
or the initiation of any proceeding for that purpose;
(iii) of the happening of any event which makes untrue any
statement of a material fact made in any such registration statement
or which requires the making of a change in such registration
statement in order to make the statements therein not misleading; and
(iv) of all actions of the Commission with respect to any
amendments to any such registration statement or which may from time
to time be filed with the Commission.
For purposes of this Section 2(b), informal requests by or acts of the Staff of
the Commission shall not be deemed actions of or requests by the Commission.
3. Expenses.
(a) The Trust will pay or cause to be paid the following expenses:
organization costs of the Trust; compensation of Trustees who are not
"affiliated persons" of Placement Agent; governmental fees; interest charges;
loan commitment fees; taxes; membership dues in industry associations allocable
to the Trust; fees and expenses of independent auditors, legal counsel and any
transfer agent, investor servicing agent, registrar or dividend disbursing
agent of the Trust; expenses of issuing and redeeming Trust Interests; expenses
of preparing, typesetting, printing and mailing registration statements,
investor reports, notices, proxy statements and reports to governmental
officers and commissions; expenses connected with the execution, recording and
settlement of security transactions; insurance premiums; fees and expenses of
the custodian for all services, including safekeeping of funds and securities
and maintaining required books and accounts; expenses of calculating net asset
value (including but not limited to the fees of independent pricing services);
expenses of meetings of investors; expenses relating to the registration of
Trust Interests; and such non-recurring or extraordinary expenses as may arise,
including those relating to actions, suits or proceedings to which the Trust
may be a party and the legal obligation which the Trust may have to indemnify
its Trustees and officers with respect thereto.
(b) Except as otherwise provided in this Agreement, Placement Agent will
pay or cause to be paid all expenses incurred by Placement Agent in connection
with the sale of Trust Interests as contemplated by this Agreement.
4. Indemnification by the Trust. In the absence of willful misfeasance,
bad faith, gross negligence or reckless disregard of obligations or duties
hereunder on the part of Placement Agent, the Trust agrees to indemnify
Placement Agent, its officers and directors, and any person that controls
Placement Agent within the meaning of the 1933 Act against any and all claims,
demands, liabilities and expenses that any such indemnified party may incur
under the 1933 Act, or common law or otherwise, arising out of or based upon
any alleged untrue statement of a material fact contained in the registration
statement for the Trust or any Portfolio, or any omission to state a material
fact therein, the omission of which makes any statement contained therein
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 Placement Agent. Nothing herein contained shall require the
Trust to take any action contrary to any provision of its Declaration of Trust
or any applicable statute or regulation.
5. Indemnification by Placement Agent. Placement Agent agrees to indemnify
the Trust, its officers and Trustees and any person that controls the Trust
within the meaning of the 1933 Act against any and all claims, demands,
liabilities and expenses that any such indemnified party may incur under the
1933 Act, or common law or otherwise, arising out of or based upon (i) any
alleged untrue statement of a material fact contained in the registration
statement for the Trust or any omission to state a material fact therein, the
omission of which makes any statement contained therein misleading, if 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
Placement Agent; and (ii) any act or deed of Placement Agent or its employees
or agents that has not been authorized by the Trust in any Registration
Statement or by this Agreement.
6. Term and Termination.
(a) This Agreement shall become effective with respect to the Trust
Interests on the date first written above. This Agreement shall continue for
successive annual periods after its effectiveness so long as each such
continuance is specifically approved by votes of a majority of both the
Trustees of the Trust and the Trustees of the Trust who are not parties to this
Agreement or interested persons (as defined in the 0000 Xxx) of any such party
and who have no direct or indirect financial interest in this Agreement, cast
in person at a meeting called for the purpose of voting on such approval.
(b) This Agreement is terminable as to the Trust without penalty, on not
more than 60 days' nor less than 30 days' notice to Placement Agent by the
Trustees of the Trust, by vote of the holders of a majority of the Trust
Interests of the Trust or applicable Portfolio, as the case may be, or on not
less than 90 days' notice to the Trust by Placement Agent.
(c) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
7. Limitation of Liability. The obligations of the Trust hereunder shall
not be binding upon any of the Trustees, officers or investors of the Trust
personally, but shall bind only the assets and property of the Trust. Any
reference to the Trust hereunder means and refers to the Trustees from time to
time serving under the Declaration of Trust of the Trust. The execution and
delivery of this Agreement has been authorized by the Trustees, and this
Agreement has been signed on behalf of the Trust by an authorized officer of
the Trust, acting as such and not individually, and neither such authorization
by such Trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them individually or to impose any liability
on any of them personally, but shall bind only the assets and property of the
Trust as provided in the Declaration of Trust.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the provisions of the
1940 Act.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
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By:
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XXXXXXX XXXXX XXXXXX, INC.
By:
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