Exhibit (h)(i)
GENERAL DISTRIBUTOR'S AGREEMENT
by and between
MAN INVESTMENTS INC.
and
MAN-GLENWOOD LEXINGTON TEI, LLC
AGREEMENT, made as of the 13th day of January, 2004, by and between
Man-Glenwood Lexington TEI, LLC and Man Investments Inc.
RECITAL
WHEREAS, Man-Glenwood Lexington TEI, LLC, a Delaware limited liability
company ("TEI"), is registered as a closed-end, non-diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and is registering $100,000,000 in units of its limited liability
company interests ("Units") under the Securities Act of 1933, as amended (the
"1933 Act"), to be offered for sale in a public offering in accordance with the
terms and conditions set forth in the Prospectus (the "Prospectus") and
Statement of Additional Information (the "SAI") included in TEI's Registration
Statement filed with the Securities and Exchange Commission on Form N-2, as it
may be amended from time to time.
In this connection, TEI desires that Man Investments Inc. (the "General
Distributor") act as General Distributor for the sale and distribution of Units
that have been registered as described above and of any additional Units that
may become registered during the term of this Agreement.
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. Appointment of General Distributor.
TEI hereby appoints you as the sole general distributor of Units in
connection with the aforesaid public offering of Units, and TEI further agrees
from and after the date of this Agreement, that it will not, without your
consent, sell or agree to sell any Units otherwise than through you, except (a)
TEI may itself sell Units without sales charges as an investment to the
officers, trustees or directors and bona fide present and former full-time
employees of TEI and to other investors who are identified in the Prospectus and
SAI as having the privilege to buy Units at the public offering price described
in the Prospectus; (b) TEI may issue Units in connection with a merger,
consolidation or acquisition of assets on such basis as may be authorized or
permitted by the 1940 Act and the rules thereunder; and (c) TEI may issue Units
in connection with the reinvestment of distributions made by TEI or of any other
investment company if permitted by the Prospectus and SAI.
2. Sale of Units.
You agree to serve as the general distributor of Units in accordance
with the terms of this Agreement, and to offer Units to investors as agent of
TEI either directly or through broker-dealers which enter into selling
agreements with you. In connection with the offering of Units, you further agree
that:
(a) You will use your best efforts to sell Units, provided,
however, that when requested by TEI at any time because of market or other
economic considerations or abnormal circumstances of any kind, or when agreed to
by mutual consent between you and TEI, you will suspend such efforts. TEI may
also withdraw the offering of Units at any time when required by the provisions
of any statute, order, rule or regulation of any governmental body having
jurisdiction. It is understood that you do not undertake to sell all or any
specific number or amount of Units.
(b) You will not make offers or sales of Units except in the
manner set forth in TEI's Registration Statement, and specifically agree that if
an investor qualifies for a reduced sales charge, You will offer and sell Units
to that investor at the reduced sales charge. We have established procedures
that are to be followed in connection with the offer and sale of Units and you
agree not to make offers or sales of any Units and agree to require all
broker-dealers that enter into selling agreements with you not to make any such
offers or sales except in compliance with such procedures. In this regard, you
agree that:
(i) No sale of Units to any one investor will be for less than the
minimum amount as may be specified in the Prospectus or as TEI shall advise you.
(ii) No offer or sale of Units will be made in any state or
jurisdiction, or to any prospective investor located in any state or
jurisdiction, where Units have not been registered or qualified for offer and
sale under applicable state securities laws unless Units are exempt from the
registration or qualification requirements of such laws.
(iii) Sales of Units will be made only to "Qualified Investors" as
described in the Prospectus, and that any such investor is not on the List of
Specially Designated Nationals and Blocked Persons published by the Office of
Foreign Assets Control of the United States Department of Treasury, as such list
may be amended from time to time, and does not reside or have a business in any
jurisdiction identified by the Office of Foreign Assets Control.
(c) You will furnish to prospective investors only such
information concerning TEI and the offering of Units as may be contained in the
Prospectus and SAI or any written supplements thereto, and such other materials
as you have prepared and which comply with applicable laws and regulations. For
purposes of the offering of Units, TEI will furnish to you at your expense
copies of the Prospectus and the SAI which shall be furnished by you to
prospective investors as required by applicable law and regulations. Additional
copies of the Prospectus and the SAI will be furnished in such numbers as you
may reasonably request for purposes of the offering.
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(d) The closing of the initial offering of Units will occur on
such date as we shall agree. Thereafter, Units shall be offered and made
available for purchase on a basis as described in the Prospectus and SAI or on
such other basis as may be determined by TEI.
3. Sales Charge.
Units shall be sold by you at the public offering price described in
the Prospectus, including a front-end sales charge not in excess of 3% of the
offering price, but which front-end sales charge shall be reduced or eliminated
under certain other circumstances or with respect to certain types of investors,
in each case on the basis set forth in the Prospectus and SAI. You may re-allow
all or any portion of the front-end sales charge to broker-dealers as you may
determine, and you (or one of your affiliates) may make payments of such
additional selling compensation to broker-dealers through which sales are made,
as you may determine, from your own resources (such dealers and brokers shall
collectively include all domestic or foreign institutions eligible to offer and
sell the Units).
4. Purchase of Units.
(a) As General Distributor, you shall have the right to accept or
reject orders for the purchase of Units at your discretion. Any consideration
that you may receive in connection with a rejected purchase order must be
returned promptly.
(b) You agree promptly to issue, or to cause the duly appointed
agent of TEI to issue, confirmations of all accepted purchase orders and to
transmit a copy of such confirmations to TEI. The full subscription amounts
payable in connection with each order for the purchase of Units by an investor
shall be transmitted by you or by the selling dealer to TEI's escrow agent,
including applicable sales charges, within the periods specified in the
Prospectus and SAI.
5. 1933 Act Registration.
TEI agrees that it will use its best efforts to maintain the
effectiveness of the Registration Statement under the 1933 Act. TEI further
agrees to prepare and file any amendments to the Registration Statement as may
be necessary and any supplemental data in order to comply with the 1933 Act.
6. 1940 Act Registration.
TEI is registered under the 1940 Act as a closed-end management
investment company, and will use its best efforts to maintain such registration
and to comply with the requirements of the 1940 Act. TEI further agrees to
prepare and file any amendments to the Registration Statement as may be
necessary and any supplemental data in order to comply with the 1940 Act.
7. State Blue Sky Qualification.
At your request, TEI will take such steps as may be necessary and
feasible to qualify Units for sale in states, territories or dependencies of the
United States, the District of Columbia, and the Commonwealth of Puerto Rico, in
accordance with the laws thereof, and to renew or extend any such qualification;
provided, however, that TEI shall not be required to qualify Units
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or to maintain the qualification of Units in any jurisdiction where it shall
deem such qualification disadvantageous to TEI.
8. Duties of General Distributor.
You agree that:
(a) You shall furnish to TEI any pertinent information required to
be inserted with respect to you as General Distributor within the purview of the
Securities Act of 1933 in any reports or registrations required to be filed with
any governmental authority;
(b) You will not make any representations inconsistent with the
information contained in the Prospectus and SAI;
(c) You shall maintain such records as may be reasonably required
for TEI or its investor servicing agent to respond to member requests or
complaints, and to permit TEI to maintain proper accounting records, and you
shall make such records available to TEI and its investor servicing agent upon
request;
(d) In performing your duties under this Agreement, you shall
comply with all requirements of TEI's Prospectus and SAI and all applicable
laws, rules and regulations with respect to the purchase, sale and distribution
of Units; and
(e) Notwithstanding anything to the contrary in this Agreement,
you: (i) maintain anti-money laundering policies that comply with the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 and applicable Federal anti-money laundering
regulations, including steps to verify the identity of prospective subscribers
("AML Laws, Regulations and Policies"); (ii) comply with such AML Laws,
Regulations and Policies; (iii) will promptly deliver to TEI's investment
adviser's Money Laundering Reporting Officer notice of any such AML Laws,
Regulations and Policies violation, suspicious activity, suspicious activity
investigation or filed Suspicious Activity Report that relates to any
prospective subscriber for, or purchaser of, Units; and (iv) will cooperate with
and deliver information reasonably requested concerning subscribers that
purchased Units necessary to comply with such AML Laws, Regulations and
Policies.
9. Liability.
To the extent consistent with applicable law, the General Distributor
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by TEI in connection with the matters to which this Agreement relates,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties, from reckless disregard of its
obligations and duties under this Agreement, or from its failure to comply with
laws, rules and regulations applicable to it in connection with its distribution
of the Units.
10. Disclaimer of Manager and Member Liability.
The General Distributor understands and agrees that the obligations of
TEI under this Agreement are not binding upon any Manager or member of TEI
personally, but bind only TEI
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and TEI's property; the General Distributor represents that it has notice of the
provisions of the Limited Liability Company Agreement of TEI disclaiming Manager
and member liability for acts or obligations of TEI.
11. Indemnification.
To the extent consistent with applicable law, TEI agrees to indemnify,
defend and hold the General Distributor and its affiliates and brokers and their
affiliates that have entered into selling agreements with the General
Distributor free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) that the General Distributor and its affiliates and brokers and their
affiliates that have entered into selling agreements with the General
Distributor may incur, as the result of acting as distributor for TEI, under the
1933 Act or under common law or otherwise, arising out of or based upon (i) any
untrue statement, or alleged untrue statement, of a material fact contained in
TEI's Registration Statement, (ii) any omission, or alleged omission, to state a
material fact required to be stated in TEI's Registration Statement to make the
statements in either thereof not misleading or (iii) any TEI-related
advertisement or sales literature that is not in compliance with applicable
laws, rules or regulations (including, but not limited to the Conduct Rules of
the National Association of Securities Dealers, Inc.); provided, however, that
TEI's agreement to indemnify the General Distributor and its affiliates and
brokers and their affiliates that have entered into selling agreements with the
General Distributor shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any statements or representations as are
contained in TEI's Registration Statement, advertisements or sale literature
furnished in writing to TEI by the General Distributor and used in TEI's
Registration Statement, advertisements or sales literature, or arising out of or
based upon any omission or alleged omission to state a material fact in such
written information furnished by the General Distributor which is required to be
stated or necessary to make the information not misleading.
In the event of a formal legal action, TEI shall be provided with
written notice of an action brought against the General Distributor or its
affiliates or brokers or their affiliates that have entered into selling
agreements with the General Distributor, promptly following receipt of service
of the summons or other first legal process. Any failure to promptly notify TEI
will relieve TEI from any liability which it may have to the person against whom
such action is brought, or to any other person, by reason of any such untrue, or
alleged untrue, statement or omission, or alleged omission for reasons other
than on account of TEI's indemnity obligations under this section if that delay
materially prejudices TEI's ability to defend against the action. TEI will be
entitled to assume the defense of any such action brought to enforce any such
claim, demand or liability if such defense shall be conducted by counsel of good
standing approved by the General Distributor or its affiliates or brokers or
their affiliates that have entered into selling agreements with the General
Distributor, which approval shall not be unreasonably withheld. In the event TEI
elects to assume the defense of any such suit and retain counsel of good
standing so approved, the defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by any of them; but in any
case where TEI does not elect to assume the defense of any such suit or in case
the General Distributor or its affiliates or brokers or their affiliates that
have entered into selling agreements with the General Distributor reasonably
withhold approval of counsel chosen by TEI, TEI will reimburse the General
Distributor and its affiliates and brokers and their affiliates that have
entered into selling agreements with the
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General Distributor named as defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by them.
12. Allocation of Costs.
TEI shall pay the cost of composition and printing of sufficient copies
of its Prospectus and SAI as shall be required for periodic distribution to its
members and the expense of registering Units for sale under federal securities
laws and for qualifying such Units under state blue sky laws pursuant to
paragraph 7. You shall pay the expenses normally attributable to the sale of
Units, other than those to be paid by TEI, including the cost of printing and
mailing of the Prospectus (other than those furnished to existing investors) and
any sales literature used by you in the public sale of Units.
13. Duration.
This Agreement will take effect on the date first set forth above.
Unless earlier terminated pursuant to paragraph 14 hereof, this Agreement shall
remain in effect for a period of two (2) years from such date and thereafter
from year to year, so long as such continuance shall be approved at least
annually by the Board, including the vote of the majority of the Managers who
are not parties to this Agreement or "interested persons" (as defined by the
1940 Act and the rules thereunder) of any such party, cast in person at a
meeting called for the purpose of voting on such approval.
14. Termination.
This Agreement may be terminated (i) by the General Distributor at any
time without penalty upon sixty days' written notice to TEI (which notice may be
waived by TEI); or (ii) by TEI at any time without penalty upon sixty days'
written notice to the General Distributor (which notice may be waived by the
General Distributor).
15. Amendment and Assignment.
Any amendment to this Agreement shall be in writing and shall be
subject to the approval of the Board, including the vote of a majority of the
Managers who are not "interested persons," as defined by the 1940 Act and the
rules thereunder, of TEI or the General Distributor. This Agreement shall
automatically and immediately terminate in the event of its "assignment," as
defined by the 1940 Act and the rules thereunder.
16. Section Headings.
The headings for each section are for descriptive purposes only, and
such headings are not to be construed or interpreted as part of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written. .
Man-Glenwood Lexington TEI, LLC
By: /s/ Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: Secretary
Man Investments Inc.
By: /s/ Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: Secretary
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