FORM OF DISTRIBUTION AGREEMENT EATON VANCE [ ] TRUST Two International Place Boston, Massachusetts 02110
EXHIBIT (h)(4)
FORM OF DISTRIBUTION AGREEMENT
XXXXX XXXXX [ ] TRUST
Two International Place
Boston, Massachusetts 02110
______________________, 2023
Xxxxx Xxxxx Distributors, Inc.
Two International Place
Boston, Massachusetts 02110
Re: | Distribution Agreement Relating to At-the-Market Offerings |
Ladies and Gentlemen:
Xxxxx Xxxxx [ ] Trust is a Massachusetts business trust operating as a closed-end management investment company (hereinafter referred to as the “Fund”). The Fund has filed a registration statement on Form N-2 (File Nos. 333-[ ] and 811-[ ]) (the “Registration Statement”) pursuant to the Investment Company Act of 1940, as amended, and the Securities Act of 1933, as amended (the “1933 Act”), to register additional common shares of the Fund, which may be issued and sold from time to time through various specified transactions, including at-the-market (“ATM”) offerings.
You have informed us that Xxxxx Xxxxx Distributors, Inc. is registered as a broker-dealer under the provisions of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is a member in good standing with the Financial Industry Regulatory Authority, Inc. (“FINRA”). You have indicated your desire to act as distributor for the Fund’s common shares issued pursuant to the Registration Statement. We have been authorized by the Fund to execute and deliver this Agreement to you by a resolution of our Board of Trustees (the “Trustees”) adopted at a meeting of the Trustees, at which a majority of Trustees, including a majority of our Trustees who are not otherwise interested persons of our investment manager or its related organizations, were present and voted in favor of said resolution approving this Agreement.
(a) You shall be entitled to receive a sales commission from the Fund in an amount equal to 1.00% of the gross sales price per Share, of which 0.80% will be re-allowed to the sub-sales agent.
(b) You may pay to selected broker-dealers such selling agent commissions (not exceeding 80% of the total sales commission) (the “ATM Sales Agent Commission”) as you shall deem advisable, which shall be payable from the commissions payable to you under Section 4(a) above.
You shall comply with the applicable federal and state laws and regulations where our shares are offered for sale and conduct your affairs with us and with dealers, brokers or investors in accordance with the Conduct Rules of FINRA.
(a) The Fund agrees to indemnify, defend and hold you, your officers, and Directors, and any person who controls you within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, free and harmless from and against any and all claims, demands or liabilities and expenses (including the cost of investigating or defending such claims, demands or liabilities and any counsel fees incurred in connection therewith) which you, your officers, Directors or any such controlling persons may incur under the 1933 Act, the 1934 Act, or under common law or otherwise, arising out of or based upon (i) any untrue statement of a material fact contained in the Fund’s Registration Statement or arising out of or based upon any alleged omission to state a material fact required to be stated in it or necessary to make the statements in it not misleading, except insofar as such claims, demands, liabilities or expenses arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information furnished in writing by you to the Fund for use in the Registration Statement, (ii) any untrue statement of a material fact contained in the Fund’s advertisement or sales literature or arising out of or based upon any alleged omission to state a material fact required to be stated in either thereof or necessary to make the statements in either thereof not misleading, except insofar as such claims, demands, liabilities or expenses arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information furnished in writing by you to the Fund for use in such advertisement or sales literature or (iii) any action taken or omitted by the Fund prior to the date of this Agreement. You agree to comply with all of the applicable terms and provisions of the 1934 Act.
(b) You agree to indemnify, defend, and hold the Fund, its officers, Trustees, employees shareholders and agents, and any person who controls the Fund within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, free and harmless from and against any and all claims, demands, liabilities and expenses (including the cost of investigating or defending against such claims, demands or liabilities and any counsel fees incurred in connection therewith) which the Fund, its Trustees, officers, employees, shareholders and agents, or any such controlling person may incur under the 1933 Act, the
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1934 Act or under common law or otherwise arising out of or based upon any untrue statement of a material fact contained in information furnished in writing by you to the Fund for use in the Registration Statement, or arising out of or based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in the Registration Statement necessary to make such information not misleading.
A party seeking indemnification hereunder ( “Indemnitee”) shall give prompt written notice to the party from whom indemnification is sought (“Indemnitor”) of a written assertion or claim of any threatened or pending legal proceeding which may be subject to indemnity under this Section; provided, however, that failure to notify the Indemnitor of such written assertion or claim shall not relieve the indemnitor of any liability arising from this Section. The Indemnitor shall be entitled, if it so elects, to assume the defense of any suit brought to enforce a claim subject to this Agreement and such defense shall be conducted by counsel chosen by the Indemnitor and satisfactory to the Indemnitee; provided, however, that if the defendants include both the Indemnitee and the Indemnitor, and the Indemnitee shall have reasonably concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor (“conflict of interest”), the Indemnitor shall have the right to select separate counsel to defend such claim on behalf of the Indemnitee. In the event that the Indemnitor elects to assume the defense of any suit pursuant to the preceding sentence and retains counsel satisfactory to the Indemnitee, the Indemnitee shall bear the fees and expenses of additional counsel retained by it except for reasonable investigation costs which shall be borne by the Indemnitor. If the Indemnitor (i) does not elect to assume the defense of a claim, (ii) elects to assume the defense of a claim but chooses counsel that is not satisfactory to the Indemnitee or (iii) has no right to assume the defense of a claim because of a conflict of interest, the Indemnitor shall advance or reimburse the Indemnitee, at the election of the Indemnitee, reasonable fees and disbursements of any counsel retained by Indemnitee, including reasonable investigation costs.
(a) You shall bear all expenses incurred by you in connection with your duties and activities under this Agreement including the payment to selected dealers of any sales commissions for sales of the Fund’s Shares.
(b) The Fund shall bear all costs and expenses of the Fund, including expenses (including legal fees) pertaining to the preparation and filing of the Registration Statement and Prospectus and any amendment or supplement thereto, and expenses pertaining to the preparation, printing and distribution of any reports or communications to shareholders, including Prospectuses and Statements of Additional Information, annual and interim reports, or proxy materials.
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If the foregoing meets with your approval, please acknowledge your acceptance by signing each of the enclosed counterparts hereof and returning such counterparts to us, whereupon this shall constitute a binding agreement as of the date first above written.
Very truly yours, | |
Xxxxx Xxxxx [ ] Trust | |
Name: | |
Title: | |
Xxxxx Xxxxx Distributors, Inc. | |
Name: | |
Title: |
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