DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Agreement") by and between ALKEON
GLOBAL FUND a Delaware statutory trust (the "Fund"), and MAINSAIL GROUP, L.L.C.,
a Delaware limited liability company (the "Distributor"), is dated as of August
19, 2009 and effective as set forth in Section 9(a) of this Agreement.
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
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.
(f) The Distributor represents that it has filed a Continuance
in Membership Application with FINRA (the "FINRA Application") to cover
distribution of the Fund.
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.
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(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 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
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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
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 the later of:
(i) its approval by a majority of the independent members of the Board of
Trustees at an in-person meeting of the Board of Trustees; or (ii) FINRA's
approval of the FINRA Application. This Agreement
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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 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 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.
ALKEON GLOBAL FUND
By:
-----------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Initial Trustee
MAINSAIL GROUP, L.L.C.
By:
-----------------------
Name: Xxxx Xxxxxxxxxx
Title: Chief Executive Officer
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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.
A-1
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 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
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Settlement, Entry and Registration Verification System (Fund/SERV System),
subject to the Funds' right to accept or reject orders for Shares.
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
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Banks), 312 (Correspondent/Private Banking Accounts) and 311 (Special Measures)
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/
offices/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.
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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 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
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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.
(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.
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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
