DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") by and between ALKEON GLOBAL
FUND, a Delaware statutory trust (the "Fund"), and SMH CAPITAL INC., a Texas
corporation (the "Distributor"), is dated as of August 19, 2009 and effective
upon its approval by a majority of the independent members of the board of
trustees of the Fund (the "Board") at an in-person meeting of the Board.
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; and
WHEREAS, the Fund is authorized to issue shares of beneficial interest in
the Fund ("Shares") 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"); and
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 Shares.
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 a non-exclusive distributor in connection
with the distribution of the Shares, and the Distributor hereby accepts such
appointment.
(b) The Distributor agrees to use its reasonable best efforts to offer
and sell Shares to investors that the Distributor reasonably believes meet the
eligibility requirements set forth in the Registration Statement and to use all
reasonable efforts to assist the Fund in obtaining performance by each
prospective investor who submits a completed Investor Certificate (as defined
below) to his/her broker, dealer or other financial intermediary.
(c) Unless otherwise agreed by the parties hereto, unaffiliated
brokers or dealers retained by the Distributor to act as selling agents
("Selling Agents") or PNC Global Investment Servicing (U.S.) Inc., the Fund's
administrator (the "Administrator") shall be responsible for reviewing each
completed investor certificate ("Investor Certificate") to confirm that it has
been completed in accordance with the instructions thereto. The Administrator or
the prospective investor's Selling Agent, in its sole discretion, may reject any
Investor Certificate
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that is not completed to its satisfaction and the Fund shall be under no
obligation to accept any Investor Certificate.
(d) The Distributor acknowledges that Shares will be offered and sold
only as set forth in the Registration Statement and the Fund's Declaration and
Agreement of Trust.
(e) The Fund may suspend or terminate the offering of the Shares at
any time as to specific classes of investors (to the extent such separate
classes are permitted and established by applicable law, rule or order), 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 Shares 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 Shares or to purchase any Shares for
its own account. The Fund shall be entitled to appoint additional distributors.
Section 2. AGENCY. In offering Shares, 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 trustees of the Fund (the "Board of
Trustees") or of the shareholders of the Fund (the "Shareholders"), all
necessary action to fix the number of authorized Shares 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 Shares as the Distributor reasonably may be expected to sell.
(b) For purposes of the offering of Shares, 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 Shares. 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 Shares 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
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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.
(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 described in
Section 1), the Distributor shall furnish personal investor services and account
maintenance services to Shareholders of the Fund ("Shareholder Services"),
and/or retain Selling Agents whose clients purchase Shares to provide
Shareholder Services to Shareholders who are clients of such Selling Agents.
Shareholder Services shall include, but shall not be limited to:
(i) handling inquiries from Shareholders regarding the Fund,
including but not limited to questions concerning their
investments in the Fund, and reports and tax information
provided by the Fund;
(ii) assisting in the enhancement of communications between
Shareholders and the Fund;
(iii) notifying the Fund of any changes to Shareholder
information, such as changes of address;
(iv) providing such other information and Shareholder Services as
may be reasonably requested by the Fund or, in the case of
Selling Agents, by the Distributor;
(v) assisting in any transfer of Shares made in accordance with
the terms of the Fund's Prospectus; and
(vi) assisting in any repurchase offers conducted by the Fund,
including, but not limited to: delivering to each
Shareholder in a timely manner any applicable repurchase
offer material, responding to client inquiries about
procedures for tendering Shares, tendering Shares on behalf
of Shareholders that wish to participate in the repurchase
offer, remitting repurchase proceeds to the appropriate
Shareholders, and in the event the Fund is required to pro
rate repurchase offers, determining correct allocations
among Shareholders of any repurchase proceeds and any Shares
not purchased in the repurchase offer.
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(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 Selling
Agents, the collection of amounts payable by investors and Selling Agents on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of the Financial Industry Regulatory Authority,
Inc. ("FINRA"), as such requirements may from time to time exist.
(e) The Distributor shall use the facilities, rules and procedures of
the National Securities Clearing Corporation (NSCC) Fund Settlement, Entry and
Registration Verification System (Fund/SERV System) for the payment for and
delivery of Shares.
Section 5. SELLING AGENT AGREEMENTS.
(a) The Distributor shall have the right to enter into agreements with
Selling Agents (substantially in the form included in SCHEDULE A) with the
Selling Agents listed in SCHEDULE B or such other brokers, dealers or other
financial intermediaries deemed by the Distributor to be well positioned to (i)
sell Shares and (ii) provide, or arrange for the provision of, Shareholder
Services; provided that the Distributor shall periodically inform the Board of
Trustees of its entrance into a Selling Agent Agreement. Shares sold to Selling
Agents shall be for resale by such dealers only. Notwithstanding the foregoing,
the Distributor may enter into a Selling Agent Agreement that is materially
different than the form included in SCHEDULE A so long as the Distributor
receives the prior written consent of the Board of Trustees, including a
majority of the Trustees 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
Shares only to such Selling Agents as are members in good standing of FINRA.
Section 6. FEES.
(a) The Distributor or Selling Agents may, in their discretion, impose
a sales load to each investor on the purchase price of its Shares of up to 3.0%
as specified in the Registration Statement upon acceptance of the investor's
purchase of Shares by the Administrator or Selling Agent; provided that the
Distributor or Selling Agent shall have the authority to adjust or waive the
sales load in particular cases, each in its sole discretion.
(b) As compensation for providing or arranging for the provision of
Shareholder Services, the Fund will pay the Distributor monthly fees of 0.25%
(on an annualized
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basis) of the net asset value of outstanding Shares held by investors that
receive Shareholder Services from the Distributor or from Selling Agents
retained by the Distributor ("Shareholder Servicing Fees"). Such fees shall not,
in the aggregate, exceed 0.25% (on an annualized basis) of the net asset value
of the Fund. The Distributor may retain all or a portion of the Shareholder
Servicing Fees.
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
FINRA 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
Shares 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 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
Selling Agents 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 shall bear the costs and expenses of distributing any copies thereof
which are to be used in connection with the offering of Shares to Selling Agents
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 Selling Agents in connection
with the offering of the Shares 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 Shares, 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 Shareholders 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
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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 Shareholders 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, 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 Trustees in connection with the issuance or sale of any
of the Shares.
(b) The Distributor shall indemnify and hold harmless the Fund, each
person affiliated with the Fund, and their respective officers, directors (or
Trustees, in the case of the Fund), employees, partners and shareholders from
and 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 Shareholders. 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 upon its approval by a
majority of the independent members of the Board at an in-person meeting of the
Board 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 Trustees or by the vote of a majority of the
outstanding voting securities of the Fund and (ii) by the vote of a majority of
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those Trustees 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 Trustees 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 Shares 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 Trustees or by the vote of a majority of
outstanding voting securities of the Fund and (ii) by the vote of a majority of
those Trustees 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 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 xxxxxxx.XX 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.
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ALKEON GLOBAL FUND
By:
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Initial Trustee
SMH CAPITAL INC.
By:
-------------------------
Name:
Title:
8
SCHEDULE A
MASTER SELLING AND SHAREHOLDER SERVICING AGREEMENT
[ ___________, 2009]
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"), which is a
member firm of the Financial Industry Regulatory Authority, Inc. ("FINRA,"
formerly the National Association of Securities Dealers, Inc.), has an agreement
with each of the funds listed in Annex A, as may be amended from time to time
(each a "Fund" and together, the "Funds"), pursuant to which it acts as a
distributor for the sale of shares of beneficial interest in the Funds
("Shares").
This Master Selling and Shareholder Servicing Agreement (the "Agreement"),
dated as of [________] and effective upon its approval by a majority of the
independent directors or trustees of the Fund or Funds (as applicable) at an
in-person meeting of the board of directors or trustees, shall be applicable to
any offering of Shares pursuant to a registration statement filed under the
Securities Act of 1933, as amended (the "Securities Act"). A Fund may elect to
offer and sell Shares on a delayed or continuous basis in reliance on Rule 415
under Securities Act. The terms and conditions of the Agreement shall also be
applicable to any such delayed or continuous offering of Shares.
We have delivered or will deliver to the undersigned broker-dealer (the
"Selling Agent" or "you"), for delivery to prospective purchasers of Shares,
copies of the Funds' prospectus, as amended or supplemented from time to time
(the "Prospectus"), including the Funds' required form of investor certification
(the "Investor Certification"), and other relevant written information approved
and furnished by the Funds for use by prospective purchasers in connection with
their purchase of Shares (collectively, the "Offering Documents").
We hereby appoint you as a Selling Agent with respect to the offering of
Shares, and you hereby accept such appointment, expressly upon the following
terms and conditions of the Agreement:
1. NON-EXCLUSIVE APPOINTMENT. You agree on a non-exclusive basis to use
reasonable efforts to solicit and receive offers to purchase Shares in
accordance with the terms and conditions set forth in this Agreement and the
Offering Documents. Nothing in this Agreement shall limit our right to make
other arrangements with respect to the Shares with any person, including the
appointment of other distributors or selling dealers.
2. LIMITATION ON ACTIVITIES AS SELLING AGENT; BLUE SKY. You agree to
solicit and receive offers to purchase Shares: (a) only in the jurisdictions in
which you and your employees
A-1
maintain all licenses and registrations necessary under applicable law and
regulations (including the rules of FINRA) to provide the services required to
be provided by you under this Agreement; and (b) only to U.S. persons in states
where notifications regarding the Shares have been duly filed or where no such
notifications are required or otherwise in compliance with applicable state
securities or Blue Sky laws.
We agree to inform you as to the states in which notifications of the
intention to sell Shares have been duly filed or where no such notification is
required, but we assume no responsibility or obligation as to your right to sell
Shares in any jurisdiction.
3. QUALIFIED INVESTORS.
(a) You will only: (i) solicit offers to purchase Shares from persons who
certify that they have a net worth of more than $1.5 million (or in the case of
an individual, a joint net worth with their spouse of more than $1.5 million)
("Qualified Investors"); and (ii) submit completed Investor Certifications to us
or another agent of the Funds on behalf of prospective investors who you have
determined, after reasonable inquiry, to be Qualified Investors.
(b) You agree that: (i) you have implemented procedures designed to enable
you to form a reasonable belief that a prospective investor is a Qualified
Investor; (ii) 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 a Fund is a Qualified Investor; and (iii) you will cooperate with
the Securities and Exchange Commission ("SEC") in the event of any audit or
examination of the Qualified Investor status of your clients with respect to the
Shares.
(c) You understand that Shares will be subject to transfer restrictions
that permit transfers only to persons who are Qualified Investors and agree to
provide a certification to that effect. You agree that: (i) you will not make
any transfers of Shares to any of your clients unless you believe that the
client is a Qualified Investor; (ii) you have implemented procedures designed to
enable you to form a reasonable belief that any transferee of Shares who is a
client is a Qualified Investor; (iii) you will only make transfers of Shares to
an account with a broker or dealer that has entered into a selling agreement
with us; and (iv) confirmations of any transfer will include a statement
regarding the transfer restrictions applicable to the Shares.
4. PROCESSING OF ORDERS. Orders for Shares 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
Funds shall forward from time to time to you. All orders are subject to
acceptance or rejection, in whole or in part, by the Distributor or the Funds in
their sole discretion. The minimum initial and subsequent purchase requirements
are as set forth in the Prospectus.
Payment for and delivery of Shares will be made through the facilities, and
subject to the rules and procedures, of the National Securities Clearing
Corporation (NSCC) Fund Settlement, Entry and Registration Verification System
(Fund/SERV System), subject to the Funds' right to accept or reject orders for
Shares.
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5. SUSPENSION OR WITHDRAWAL OF OFFERING. We reserve the right in our
discretion, without notice, to suspend sales or withdraw the offering of Shares
entirely or to certain persons or entities in a class or classes specified by
us.
6. SELLING AGENT'S STANDING & RELATED REPRESENTATIONS
(a) DELIVERY OF FUND MATERIALS, OFFERING DOCUMENTS AND CONFIRMATIONS. You
agree to deliver to each of your clients making purchases a copy of the then
current Prospectus prior to the time of offering or sale. Subject to receipt of
such material from Distributor, you agree thereafter to deliver to such clients
copies of the annual and interim reports, proxy solicitation and repurchase or
tender offer materials (as applicable) of a Fund and any other communications
made by a Fund to all of its investors (collectively, "Fund Materials"). You
further agree to endeavor to obtain completed proxies from such purchasers and
to forward them to the applicable Fund. Additional copies of the Fund Materials
will be supplied to you in reasonable quantities upon request.
You represent and warrant that you are familiar with Rule 15c2-8 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), relating to
the distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and when furnished with copies of any revised preliminary
prospectus, you will promptly forward copies thereof to each person to whom you
have theretofore distributed a preliminary prospectus. You further agree to
furnish any confirmations required pursuant to Rule 10b-10 under the Exchange
Act and provide 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 Shares.
You agree that in making offers of Shares you will rely upon no statement
whatsoever, written or oral, other than the statements in the Offering Documents
delivered to you by us. You will not be authorized by a Fund to give any
information or to make any representation not contained in the Offering
Documents in connection with the sale of Shares.
(b) FINRA. You represent and warrant that you are actually engaged in the
investment banking or securities business and either are a member in good
standing of FINRA or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in FINRA which agrees to make
no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making other sales
to comply with all applicable FINRA Rules. If you are a member of FINRA you
agree to promptly notify us if you cease to be in good standing with FINRA. You
further represent, by your participation in an offering of Shares, that you have
provided to us all documents and other information required to be filed with
respect to you, any related person or any person associated with you or any such
related person pursuant to the supplementary requirements of FINRA Rule 5110
with respect to review of corporate financing to the extent that such
requirements relate to such offering of Shares.
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You agree that, in connection with any purchase or sale of the Shares
wherein a selling concession, discount or other allowance is received or
granted, you will: (i) if you are a member of FINRA, comply with all applicable
interpretive material and Rules of FINRA, including, without limitation, FINRA
Conduct Rule 2740 (relating to Selling Concessions, Discounts and Other
Allowances), or (ii) if you are a foreign bank or dealer or institution not
eligible for such membership, comply with FINRA Conduct Rules 2730 (relating to
Securities Taken in Trade), 2740 (relating to Selling Concessions) and 2750
(relating to Transactions With Related Persons) as though you were such a member
and Conduct Rule 2420 (relating to Dealing with Non-Members) as it applies to a
non-member broker or dealer in a foreign country, and all other applicable rules
of FINRA.
If you are a member of FINRA, you further agree that, prior to making an
offering of Shares to any clients, you will, among other things, comply with
FINRA Conduct Rule 2310 (Recommendations to Customers (Suitability)), which
compliance shall include without limitation considering: (i) the suitability of
this investment with respect to the client's investment objectives and personal
situation, (ii) factors such as the client's personal net worth, income, age,
risk tolerance and liquidity needs, and (iii) whether the client's risk profile
is suitable for this investment.
(c) REGISTERED BROKER-DEALER. You represent that you are a broker or dealer
registered under the Exchange Act. You agree to notify us immediately if you
cease to be registered or licensed as a broker or dealer.
(d) SIPC. You agree to promptly notify us 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.
(e) COMPLAINTS; LITIGATION; REGULATORY PROCEEDINGS. You agree to promptly
advise the Distributor if you receive notice of any client complaint, litigation
initiated or threatened, or communication by any regulatory authority which
relates to a Fund or to a transaction in Shares by you, and you agree to provide
us information and documentation thereon as we may reasonably request, subject
to confidentiality obligations.
(f) APPLICABLE LAWS AND REGULATIONS. In addition to the laws, rules and
regulations specifically referenced in this Section 6, you agree to comply with
all applicable laws, rules or regulations (including, without limitation, the
FINRA Rules) in connection with your activities under this Agreement.
7. ANTI-MONEY LAUNDERING. You hereby certify that you have established and
maintain an anti-money laundering 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 laws and regulations in
your jurisdiction, including, where applicable, the USA PATRIOT Act of 2001 (the
"PATRIOT Act"), including sections 326 (Customer Identification Program), 356
(Suspicious Activity Reporting), 314 (INFORMATION SHARING), 313/319 (Foreign
Banks), 312 (Correspondent/Private Banking Accounts) and 311 (Special Measures)
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of the PATRIOT Act. You represent and warrant that any money contributed to a
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
regulations. You also represent and warrant that you will screen any investor
introduced to a Fund by you against the sanctions programs administered by the
U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC"),
including Executive Order 13224, Blocking 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/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxx/
terror/terror.pdf, and the OFAC list, available at xxxx://xxx.xxxxx.xxx/xxxxxxx
/enforcement/ofac/. 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. Upon filing a
Section 314 notice you 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.
8. PRIVACY.
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 financial information
of our clients or prospective clients. Therefore, notwithstanding anything to
the contrary contained in this Agreement, you agree that: (a) you shall not
disclose or use any Client Data (as defined in the last sentence of this Section
8) except to the extent necessary to carry out your obligations under this
Agreement and for no other purpose; (b) 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; (c) you
shall maintain, and shall require all third parties approved under subsection
(b) to maintain, effective information security measures to protect Client Data
from unauthorized disclosure or use; and (d) 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 purposes
of this Agreement, Client Data means the nonpublic personal information (as
defined in 15 U.S.C. ss. 6809(4)) of the Distributor's clients or prospective
clients (and/or the Distributor's parent, affiliated or subsidiary companies)
received by the Selling Agent in connection with the performance of its
obligations under the Agreement, including, but not limited to: (a) an
individual's name, address, e-mail address, IP address, telephone number and/or
social security number; (b) the fact that an individual has a relationship with
the Distributor and/or its parent, affiliated or subsidiary companies; or (c) an
individual's account information.
9. SHAREHOLDER SERVICES.
(a) PROVISION OF SERVICES. You agree to maintain accounts and provide
certain services for your clients who have purchased or otherwise acquired
Shares in an offering subject to this
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Agreement, including, without limitation: (i) handling inquiries from clients
regarding a Fund, including, but not limited to, questions concerning their
investments in a Fund, and reports and tax information provided by a Fund; (ii)
assisting in the enhancement of communications between clients and a Fund; (iii)
notifying a Fund of any changes to shareholder information, such as changes of
address; (iv) providing such other information and shareholder services as may
be reasonably requested by us; (v) assisting in any transfer of Shares made in
accordance with the terms of the Prospectus; and (vi) assisting in any
repurchase or tender offers conducted by Fund (as applicable), including, but
not limited to: delivering to each client in a timely manner any applicable
repurchase or tender offer material, responding to client inquiries about
procedures for tendering Shares, tendering Shares on behalf of clients that wish
to participate in the repurchase or tender offer, remitting repurchase or tender
proceeds to the appropriate clients, and in the event the Fund is required to
pro rate repurchase or tender offers, determining correct allocations among your
clients of any repurchase or tender proceeds and any Shares not purchased in the
repurchase or tender offer.
(b) COMPENSATION. Compensation for the services performed by you pursuant
to this Section 9 is set forth in Annex B hereto, as may be amended by the
parties hereto from time to time.
10. INDEMNIFICATION.
(a) You agree to indemnify and hold harmless the Distributor, the Funds and
each person affiliated with the Distributor or the Funds, 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 fees incurred in connection therewith), as incurred,
arising in connection with the performance of your obligations under this
Agreement or your breach of any of its provisions; except insofar as such loss,
liability, claim, damage, or expense is caused by the willful misfeasance, bad
faith, gross negligence or reckless disregard of the Distributor in the
performance of its obligations and duties under this Agreement.
(b) Distributor agrees to indemnify and hold harmless Selling Agent (for
the purposes of this Section, "Selling Agent" shall mean you, your directors,
officers, employees and agents, and any person who is or may be deemed to be a
controlling person of Selling Agent) from and against any and all losses,
claims, damages, liabilities or expenses (including the reasonable costs of
investigation and attorney's fees and expenses as such expenses are incurred by
Selling Agent in any action or proceeding between the parties to this Agreement
or between Selling Agent and any third party) to which Selling Agent may become
subject, insofar as any such loss, claim, damage, liability or expense (or
action with respect thereto) arises out of or is based on any untrue statement
of a material fact contained in the Prospectus or any Offering Document relating
to an offering of Shares, or arises out of or is based on the failure to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Distributor's
obligation to indemnify and hold harmless Selling Agent applies only with
respect to such statements or omissions of material fact relating to information
about the Distributor furnished in writing by the Distributor expressly for use
in any such Prospectus or sales materials.
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(c) The provisions of this Section 10 shall survive termination of
this Agreement.
11. TERMINATION; SUPPLEMENTS AND AMENDMENTS. This Agreement shall continue
in full force and effect until terminated by a written instrument executed by
each of the parties hereto; provided, however, that the terms and conditions set
forth in Section 9 shall continue in effect until terminated by a written
instrument setting forth the mutual agreements of the Funds and you for the
disposition of any Shares held by you for your clients' accounts. This Agreement
may be supplemented or amended by us by written notice thereof to you, and any
such supplement or amendment to this Agreement shall be effective with respect
to any offering of Shares to which this Agreement applies after the date of such
supplement or amendment. Each reference to "this Agreement" herein shall, as
appropriate, be to this Agreement as so amended and supplemented.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and inure
to the benefit of, the parties hereto and the respective successors and assigns
of each of them.
13. CONFIDENTIALITY. The parties agree to keep the existence and 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 13 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. The Selling Agent agrees that neither it
nor any of its affiliates shall publicly disparage the Funds, the Distributor or
any of their respective affiliates.
14. ENTIRE AGREEMENT. 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 Shares. 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. For the avoidance of doubt, the decision of a given court having
jurisdiction over a given premises that any provision hereof is invalid or
unenforceable shall have no effect whatsoever in respect of any such premises.
15. GOVERNING LAw. This Agreement and the terms and conditions set forth
herein with respect to any offering of Shares shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to or your acceptance of any reservation of any
Shares pursuant to an offering shall constitute (i) acceptance of and agreement
to the terms and conditions of this Agreement (as may be supplemented and
amended pursuant to Section 11 hereof); together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such offering of Shares, all of which shall constitute a
binding agreement between you and us, (ii) confirmation that your
representations and warranties set forth herein are true and correct at that
time, (iii) confirmation that your agreements set forth herein hereof have been
and will be fully performed by you to the extent and at the times required
thereby and (iv) acknowledgment that you have requested and received from us
sufficient copies of the final Prospectus in order to comply with your
undertakings herein.
Very truly yours,
[ ]
------------
By:
-------------------------
Name:
Title:
---------------------------
(Name of Agent)
By:
-------------------------
Name:
Title:
Address:
Telephone:
Fax:
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ANNEX A
LIST OF FUNDS
Alkeon Global Fund
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ANNEX B
Compensation Schedule for Alkeon Global Fund (the "Fund")
1. You shall be entitled to charge an upfront sales load of up to 3%
of an investor's investment amount.
2. In addition, you shall be entitled to receive an ongoing
shareholder servicing fee of [0.25%] (on an annualized basis) of the aggregate
value of Shares held by your clients that you have referred to the Fund (the
"Shareholder Servicing Fee"). The Shareholder Servicing Fee shall be determined
as of the last day of the month and paid [as soon as reasonably practicable, but
not later than [___] days after the end of such month].
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SCHEDULE B
[LIST OF BROKER-DEALERS TO BE INSERTED]
B-1
