Exhibit 6
PLACEMENT AGENCY AGREEMENT
__________ ___, 199___
The Landmark Funds Broker-Dealer Services, Inc.
0 Xx. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, ASSET ALLOCATION PORTFOLIOS (the "Portfolio"), an
open-end diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), organized as a New
York trust, has agreed that The Landmark Funds Broker-Dealer Services, Inc.
("LFBDS") shall be the exclusive placement agent (the "Placement Agent") of
beneficial interests of the Portfolio ("Portfolio Interests").
1. SERVICES AS PLACEMENT AGENT
1.1 LFBDS will act as exclusive Placement Agent of the Portfolio Interests
covered by the registration statement then in effect under the 1940 Act.
In acting as Placement Agent under this Placement Agent Agreement,
neither LFBDS nor its employees nor any agents thereof shall make any
offer or sale of Portfolio Interests in a manner which would require the
Interests to be registered under the Securities Act of 1933, as amended
(the "1933 Act").
1.2 All activities by LFBDS and its agents and employees as Placement Agent
of Portfolio Interests shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations
adopted pursuant to the 1940 Act by the Securities and Exchange
Commission (the "Commission").
1.3 LFBDS shall perform such specified activities and conduct all of its
activities as Placement Agent of Portfolio Interests, including any
activities described herein, as set forth in the Operating Policies and
Procedures (the "Operating Procedures") of the Portfolio (in such form as
may be approved from time to time by the Portfolio's Board of Trustees).
To the extent that any provision of this Agreement shall conflict with
any provision of the Operating Procedures, the applicable provision of
the Operating Procedures shall be deemed to govern.
1.4 Nothing herein shall be construed to require the Portfolio to accept any
offer to purchase any Portfolio Interests, all of which shall be subject
to approval by the Portfolio's Board of Trustees.
1.5 The Portfolio shall furnish from time to time for use in connection with
the sale of Portfolio Interests such information with respect to the
Portfolio and Portfolio Interests as LFBDS may reasonably request. The
Portfolio shall also furnish LFBDS upon request with: (a) unaudited
semiannual statements of the Portfolio's books and accounts prepared by
the Portfolio, and (b) from time to time such additional information
regarding the Portfolio's financial or regulatory condition as LFBDS may
reasonably request.
1.6 The Portfolio represents to LFBDS that all registration statements filed
by the Portfolio with the Commission under the 1940 Act with respect to
Portfolio Interests have been prepared in conformity with the
requirements of such statute and the rules and regulations of the
Commission thereunder. As used in this Agreement the term "registration
statement" shall mean any registration statement filed with the
Commission as modified by any amendments thereto that at any time shall
have been filed with the Commission by or on behalf of the Portfolio. The
Portfolio represents and warrants to LFBDS that any registration
statement will contain all statements required to be stated therein in
conformity with both such statute and the rules and regulations of the
Commission; that all statements of fact contained in any registration
statement will be true and correct in all material respects at the time
of filing of such registration statements or amendments thereto; and that
no registration statement will include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of
Portfolio Interests. The Portfolio may but shall not be obligated to
propose from time to time such amendment to any registration statement as
in the light of future developments may, in the opinion of the
Portfolio's counsel, be necessary or advisable. If the Portfolio shall
not propose such amendment and/or supplement within fifteen days after
receipt by the Portfolio of a written request from LFBDS to do so, LFBDS
may, at its option, terminate this Agreement. The Portfolio shall not
file any amendment to any registration statement without giving LFBDS
reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the Portfolio's right
to file at any time such amendment to any registration statement as the
Portfolio may deem advisable, such right being in all respects absolute
and unconditional.
1.7 The Portfolio agrees to indemnify, defend and hold LFBDS, its several
officers and directors, and any person who controls LFBDS within the
meaning of Section 15 of the 1933 Act or Section 20 of the Securities and
Exchange Act of 1934 (the "1934 Act") (for purposes of this paragraph
1.7, collectively, "Covered Persons") 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) which any Covered Person
may incur under the 1933 Act, the 1934 Act, common law or otherwise,
arising out of or based on any untrue statement of a material fact
contained in any registration statement, private placement memorandum or
other offering material ("Offering Material") or arising out of or based
on any omission to state a material fact required to be stated in any
Offering Material or necessary to make the statements in any Offering
Material not misleading; provided, however, that the Portfolio's
agreement to indemnify Covered Persons shall not be deemed to cover any
claims, demands, liabilities or expenses arising out of any financial and
other statements as are furnished in writing to the Portfolio by LFBDS in
its capacity as Placement Agent for use in the answers to any items of
any registration statement or in any statements made in any Offering
Material, or arising out of or based on any omission or alleged omission
to state a material fact in connection with the giving of such
information required to be stated in such answers or necessary to make
the answers not misleading; and further provided that the Portfolio's
agreement to indemnify LFBDS and the Portfolio's representations and
warranties herein before set forth in paragraph 1.6 shall not be deemed
to cover any liability to the Portfolio or its investors to which a
Covered Person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of a Covered Person's reckless disregard of its
obligations and duties under this Agreement. The Portfolio shall be
notified of any action brought against a Covered Person, such
notification to be given by letter or by telegram addressed to the
Portfolio, c/o Xxxxx X. Xxxxxx, Esq., Xxxxxxx, Xxxx & Xxxxx, 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, with a copy to Xxxxxx X. Xxxxxxxx, 0
Xx. Xxxxx Xxxxxx, 0xx xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 promptly after
the summons or other first legal process shall have been duly and
completely served upon such Covered Person. The failure to so notify the
Portfolio of any such action shall not relieve the Portfolio from any
liability except to the extent that the Portfolio shall have been
prejudiced by such failure, or from any liability that the Portfolio may
have to the Covered Person against whom such action is brought by reason
of any such untrue statement or omission, otherwise than on account of
the Portfolio's indemnity agreement contained in this paragraph. The
Portfolio will be entitled to assume the defense of any suit brought to
enforce any such claim, demand or liability, but in such case such
defense shall be conducted by counsel of good standing chosen by the
Portfolio and approved by LFBDS, which approval shall not be unreasonably
withheld. In the event the Portfolio elects to assume the defense of any
such suit and retain counsel of good standing approved by LFBDS, the
defendant or defendants in such suit shall bear the fees and expenses of
any additional counsel retained by any of them; but in case the Portfolio
does not elect to assume the defense of any such suit, or in case LFBDS
reasonably does not approve of counsel chosen by the Portfolio, the
Portfolio will reimburse the Covered Person named as defendant in such
suit, for the fees and expenses of any counsel retained by LFBDS or such
Covered Person. The Portfolio's indemnification agreement contained in
this paragraph and the Portfolio's representations and warranties in this
Agreement shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of Covered Persons, and shall
survive the delivery of any Portfolio Interests. This agreement of
indemnity will inure exclusively to Covered Persons and their successors.
The Portfolio agrees to notify LFBDS promptly of the commencement of any
litigation or proceedings against the Portfolio or any of its officers or
Trustees in connection with the issue and sale of any Portfolio
Interests.
1.8 LFBDS agrees to indemnify, defend and hold the Portfolio, its several
officers and trustees, and any person who controls the Portfolio within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
(for purposes of this paragraph 1.8, collectively, "Covered Persons")
free and harmless from and against any and all claims, demands,
liabilities and expenses (including the costs of investigating or
defending such claims, demands, liabilities and any counsel fees incurred
in connection therewith) that Covered Persons may incur under the 1933
Act, the 1934 Act, or common law or otherwise, but only to the extent
that such liability or expense incurred by a Covered Person resulting
from such claims or demands shall arise out of or be based on any untrue
statement of a material fact contained in information furnished in
writing by LFBDS in its capacity as Placement Agent to the Portfolio for
use in the answers to any of the items of any registration statement or
in any statements in any Offering Material or shall arise out of or be
based on any omission to state a material fact in connection with such
information furnished in writing by LFBDS to the Portfolio required to be
stated in such answers or necessary to make such information not
misleading. LFBDS shall be notified of any action brought against a
Covered Person, such notification to be given by letter or telegram
addressed to LFBDS at 0 Xx. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, promptly after the summons or other first
legal process shall have been duly and completely served upon such
Covered Person. LFBDS shall have the right of first control of the
defense of the action with counsel of its own choosing satisfactory to
the Portfolio if such action is based solely on such alleged misstatement
or omission on LFBDS's part, and in any other event each Covered Person
shall have the right to participate in the defense or preparation of the
defense of any such action. The failure to so notify LFBDS of any such
action shall not relieve LFBDS from any liability except to the extent
that LFBDS shall have been prejudiced by such failure, or from any
liability that LFBDS may have to Covered Persons by reason of any such
untrue or alleged untrue statement, or omission or alleged omission,
otherwise than on account of LFBDS's indemnity agreement contained in
this paragraph.
1.9 No Portfolio Interests shall be offered by either LFBDS or the Portfolio
under any of the provisions of this Agreement and no orders for the
purchase or sale of Portfolio Interests hereunder shall be accepted by
the Portfolio if and so long as the effectiveness of the registration
statement or any necessary amendments thereto shall be suspended under
any of the provisions of the 1940 Act; provided, however, that nothing
contained in this paragraph shall in any way restrict or have an
application to or bearing on the Portfolio's obligation to redeem
Portfolio Interests from any investor in accordance with the provisions
of the Portfolio's registration statement or Declaration of Trust, as
amended from time to time.
1.10 The Portfolio agrees to advise LFBDS as soon as reasonably practical by a
notice in writing delivered to LFBDS or its counsel:
(a) of any request by the Commission for amendments to the registration
statement then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement then in effect
or the initiation by service of process on the Portfolio of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of a
material fact made in the registration statement then in effect or that
requires the making of a change in such registration statement in order
to make the statements therein not misleading; and
(d) of all action of the Commission with respect to any amendment to any
registration statement that may from time to time be filed with the
Commission.
For purposes of this paragraph 1.10, informal requests by or acts of the Staff
of the Commission shall not be deemed actions of or requests by the Commission.
1.11 LFBDS agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Portfolio all
records and other information not otherwise publicly available relative
to the Portfolio and its prior, present or potential investors and not to
use such records and information for any purpose other than performance
of its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Portfolio, which approval
shall not be unreasonably withheld and may not be withheld where LFBDS
may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Portfolio.
1.12 In addition to LFBDS's duties as Placement Agent, the Portfolio
understands that LFBDS may, in its discretion, perform additional
functions in connection with transactions in Portfolio Interests.
The processing of Portfolio Interest transactions may include, but is not
limited to, compilation of all transactions from LFBDS's various offices;
creation of a transaction tape and timely delivery of it to the Portfolio's
transfer agent for processing; reconciliation of all transactions delivered to
the Portfolio's transfer agent; and the recording and reporting of these
transactions executed by the Portfolio's transfer agent in customer statements;
rendering of periodic customer statements; and the reporting of IRS Form 1099
information at year end if required.
LFBDS may also provide other investor services, such as communicating with
Portfolio investors and other functions in administering customer accounts for
Portfolio investors.
LFBDS understands that these services may result in cost savings to the
Portfolio or to the Portfolio's investment manager and neither the Portfolio
nor the Portfolio's investment manager will compensate LFBDS for all or a
portion of the costs incurred in performing functions in connection with
transactions in Portfolio Interests. Nothing herein is intended, nor shall be
construed, as requiring LFBDS to perform any of the foregoing functions.
2. TERM.
This Agreement shall become effective on the date first above written and,
unless sooner terminated as provided herein, shall continue until _________
___, 19___ and thereafter shall continue automatically for successive annual
periods, provided such continuance is specifically approved at least annually
by (i) the Portfolio's Board of Trustees or (ii) by a vote of a majority (as
defined in the 0000 Xxx) of the Portfolio's outstanding voting securities,
provided that in either event the continuance is also approved by the majority
of the Portfolio's Trustees who are not interested persons (as defined in the
0000 Xxx) of the Portfolio and who have no direct or indirect financial
interest in this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable without
penalty, on not less than 60 days' notice, by the Board, by vote of a majority
(as defined in the 0000 Xxx) of the Portfolio's outstanding voting securities,
or by LFBDS. This Agreement will also terminate automatically in the event of
its assignment (as defined in the 1940 Act and the rules thereunder).
3. REPRESENTATIONS AND WARRANTIES.
LFBDS and the Portfolio each hereby represents and warrants to the other that
it has all requisite authority to enter into, execute, deliver and perform its
obligations under this Agreement and that, with respect to it, this Agreement
is legal, valid and binding, and enforceable in accordance with its terms.
4. CONCERNING APPLICABLE PROVISIONS OF LAW, ETC.
This Agreement shall be subject to all applicable provisions of law, including
the applicable provisions of the 1940 Act and to the extent that any provisions
herein contained conflict with any such applicable provisions of law, the
latter shall control.
This Agreement is executed and delivered at a location or locations outside the
United States, and the laws of the Commonwealth of Massachusetts shall, except
to the extent that any applicable provisions of Federal Law shall be
controlling, govern the construction, validity and effect of this Agreement,
without reference to principles of conflicts of law.
If the contract set forth herein is acceptable to you, please so indicate by
executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective at the closing of business on the date
hereof.
Yours very truly,
ASSET ALLOCATION PORTFOLIOS
By:
Title:
Accepted:
THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC.
By:
Title:
