DISTRIBUTION AGREEMENT
AGREEMENT made as of October 18, 2006 between OLD MUTUAL 2100 EMERGING
MANAGERS FUND, L.L.C., a Delaware limited liability company (the "Fund"), and
OLD MUTUAL INVESTMENT PARTNERS, a Delaware corporation (the "Distributor").
WITNESSETH:
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 limited liability company
interests in the Fund ("Interests") 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 wish to enter into an agreement with
each other with respect to the offering of the Fund's Interests.
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 Interests, and the Distributor hereby accepts such
appointment.
(b) The Distributor agrees to use its reasonable best efforts to
offer and sell Interests 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, 0000 Xxxxx Xxxx
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 Interests 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 Interests
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 Interests 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 Interests or to purchase any Interests
for its own account. The Fund shall be entitled to appoint additional
distributors.
Section 2. AGENCY. In offering Interests, 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
Interests 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 Interests as the Distributor
reasonably may be expected to sell.
(b) For purposes of the offering of Interests, 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 Interests. 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 Interests 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 selling and marketing the Fund (as depicted in
Section 1), the Distributor shall facilitate and assist in the provision by
broker-dealers and other intermediaries of investor services ("Member Services")
to Members that are customers of such broker-dealers and other intermediaries.
Member Services refers principally to handling inquiries from Members regarding
the Fund or their investments in the Fund.
(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
Selected Dealers (as defined below), the collection of amounts payable by
investors and Selected Dealers on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD,
as such requirements may from time to time exist.
Section 5. SELECTED DEALER AGREEMENTS
(a) The Distributor shall have the right to enter into selected
dealer 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 Interests and (ii) provide,
or arrange for the provision of, Member Services to Members ("Selected
Dealers"); provided that the Distributor shall periodically inform the Fund's
Board of Managers of its entrance into a selected dealer agreement. Interests
sold to Selected Dealers shall be for resale by such dealers only.
Notwithstanding the foregoing, the Distributor may enter into a selected dealer
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
Interests only to such Selected Dealers as are members in good standing of the
NASD.
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Section 6. FEES
(a) The Distributor is entitled to charge a sales load to each
investor on the purchase price of its Interests of up to 2%. The specific amount
of the sales load paid with respect to a Member is generally dependent on the
size of the investment in the Fund. The sales load will be charged as a
percentage of an investor's investment amount. The sales load will not
constitute an investment made by the investor in the Fund. The sales load may be
adjusted or waived at the sole discretion of the applicable Selected Dealer in
consultation with the Fund, and is expected to be waived for the Adviser and its
affiliates, including the directors, partners, principals, officers and
employees of each of these entities, and employees of the Selected Dealers and
certain of their affiliates.
(b) As compensation for the sale and marketing of Interests as well
as providing Member Services, the Fund will pay the Distributor a monthly fee at
an annual rate of 0.90% of the net assets of the Fund as of the end of the
month, after adjustment for any purchases and repurchases of Interests during
the month, and will be due and payable in arrears within 30 business days after
the end of such month (the "Marketing and Member Servicing Fee").
(c) The Distributor may pay amounts pursuant to this Section 6 to
any affiliated person of the Distributor if such affiliated person is a Selected
Dealer.
(d) In accordance with applicable NASD Conduct Rules, the
Distributor shall cap the sale load it receives from investors at 2%. Further,
parties understand and agree that, pursuant to limitations imposed by the NASD,
no payments will be made to the Distributor under this Agreement to the extent
payments made to the Distributor and selected dealers exceed, in the aggregate,
6% of the total proceeds proposed to be received by the Fund in respect of sales
of Interests registered under the Fund's current registration statement on Form
N-2 (the "Registration Statement"). Finally, parties understand and agree that,
pursuant to limitations imposed by the NASD, no payments will be made to the
Distributor and any other NASD member exceed, in the aggregate, 8% of the total
proceeds proposed to be received by the Fund in respect of sales of Interests
registered under the Fund's Registration Statement.
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
the NASD 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 Interests 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
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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
Selected Dealers as reimbursement for their expenses associated with payments of
sales commissions to financial consultants. 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 Interests to Selected Dealers or 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 Selected Dealers in connection with the offering of
the Interests for sale to 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 Interests, 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,
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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
Interests.
(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 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 Interests 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
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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 2100 EMERGING MANAGERS
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
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"),
which is a member firm of the National Association of Securities Dealers, Inc.
("NASD"), has an agreement with Old Mutual 2100 Emerging Managers Fund, L.L.C.
(the "Fund"), pursuant to which it acts as the distributor for the sale of
limited liability company interests in the Fund ("Interests") 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. Interests are intended to be offered and sold by the Fund only to
persons who are "accredited investors" as defined in Regulation D under the
Securities Act of 1933, as amended (the "1933 Act"), and as described in the
Prospectus. We have delivered or will deliver to the undersigned broker-dealer
(the "Selling Dealer" or "you"), for delivery to prospective purchasers of
Interests, copies of the Prospectus, the investor certification (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 Interests (collectively, the
"Offering Documents").
We hereby appoint you as a selling dealer with respect to the
offering of Interests, and you hereby accept such appointment, upon the
following terms and conditions:
1. In making available Interests 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 Interests 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 Interests.
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 Interests.
(b) In connection with the offer and sale of Interests, we
authorize you to collect and retain the upfront sales loads specified in ANNEX
B. Furthermore, we agree to pay you the upfront payment for initial purchases of
Interests and the annual marketing and member servicing fees as specified in
ANNEX B; provided, however, that in respect of the payment of marketing and
member
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servicing fees, in no event shall we be required to pay any amounts in excess
of: (i) the marketing and member servicing fees actually paid by the Fund to us;
and (ii) the NASD cap described in ANNEX B and in the Prospectus. Furthermore,
beginning on the first month in which your customer ceases to hold Interests,
you shall no longer be entitled to any marketing and member servicing fees in
respect of such Interests. 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 Interests 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 "accredited investors" as defined in Regulation D under the 1933
Act; and (2) solicit and receive offers to purchase Interests (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 the NASD) 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 "accredited investor";
and (2) you will prohibit the use of offering materials for distribution to or
use by prospective purchasers of Interests, 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 Interests unless you
have already received orders for such Interests 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 Interests at the time the order is submitted.
(e) You represent that in transmitting any order for Interests
that the prospective investor for whom you transmit the order has signed the
Investor Certification and that you have determined that the Interest is 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 the NASD. 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
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standing of the NASD; (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 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 Interests; (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 Interests, 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 the NASD 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 Interests; 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 Interests 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. ss. 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
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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 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. ss.
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 the NASD, that such membership has not been suspended, and that we agree to
maintain membership in the NASD; (3) in respect of the distribution of
Interests, 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 the NASD, including
without limitation, the NASD Rules of Conduct; (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 Interests; 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
12
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 Interests 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 Prospectus, and
(2) to arrange for the redemption or tender of Interests 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 Interests 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 Interests 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 Interests. In
addition, if any Interests 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 Interests. The
"pro-rata" refunded portion shall be calculated based upon the number of months
that the Interests were NOT held by your customer(s) during the first twelve
month period following the original purchase. (Thus, for example, if the
Interests were held only for three months, then you will be obligated to refund
9/12ths or 3/4ths of the compensation you received from us.)
9. No person is authorized to make any representations concerning Interests
except those contained in the Offering Documents. In making Interests 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 Interests 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 NASD 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
13
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 Interests.
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 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 Interests and will use our reasonable efforts to file
such notifications of the intention to sell Interests in each jurisdiction in
which the Interests are to be offered by you. We will inform you as to the
States in which such notifications of the intention to sell Interests 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 Interests in any
jurisdiction. Interests may only be offered or sold to U.S. persons in States
where notifications regarding the Interests 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 Interests 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 Interests. 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.]
14
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date written below.
OLD MUTUAL INVESTMENT PARTNERS
By:
--------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: President
-----------------------------------
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: Xxxxx Xxxxxxxxx
15
ANNEX A
The following services constitute the member services referenced in Section
3(a) of this Agreement:
1. handling inquiries from your customers who own Interests ("Members")
regarding the Fund, including but not limited to questions concerning their
investments in the Fund, and reports and tax information provided by the Fund;
2. assisting in the enhancement of relations and communication between Members
and the Fund;
3. assisting in the establishment and maintenance of Members' accounts with the
Fund;
4. assisting in processing repurchase requests from Members;
5. assisting in the maintenance of Fund records containing Member information,
such as changes of address; and
6. providing such other similar services as we may reasonably request to the
extent you are permitted to do so under applicable statutes, rules and
regulations.
A-1
ANNEX B
1. You shall be entitled to charge an upfront sales load of up to
2% of an investor's investment amount.
2. In addition, you shall be entitled to an upfront fee, to be
paid by the Distributor, equal to 1.00% of the amount of Interests purchased by
investors you introduce to the Fund. This one-time payment shall be payable
within 15 days of the effective date of the investor's investment in the Fund
(i.e., within 15 days of the date as of which the investor is a Member of the
Fund).
3. Thereafter, beginning on the 13th month following the effective
date of initial purchase of Interests by investors you introduced to the Fund,
you shall also be entitled to receive a monthly marketing and member servicing
fee at an annual rate of 0.90% of the aggregate value of such Interests. The fee
shall be calculated based on the net asset value of the Interests as of the end
of the applicable month and shall be payable in arrears within 30 days after the
end of such month.
In accordance with applicable NASD Conduct Rules, the parties
understand and agree that, pursuant to limitations imposed by the NASD, no
payments will be made to you under this Agreement to the extent payments made to
us and any other NASD member (in connection with the sale of Interests) exceed,
in the aggregate, 8% of the total proceeds proposed to be received by the Fund
in respect of sales of Interests registered under the Fund's current
registration statement on Form N-2.
B-1
SCHEDULE B
[TO COME]
