[Letterhead of Merrimac Funds]
Form of
Private Placement Agent Agreement
Boston, Massachusetts
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Merrimac Funds (the "Trust"), an open-end
diversified investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act"), which has been organized as a Delaware
business trust in series form, has agreed that ____________________ shall act as
an agent (the "Private Placement Agent") on behalf of the Trust for the private
placement of the Placement Class Shares of the series of the Trust (the
"Shares").
1. Appointment. The Private Placement Agent xxxxxx agrees to perform
certain services as hereinafter set forth. Such appointment hereunder is
non-exclusive, and the parties recognize and agree that, from time to time, the
Trust may enter into other Private Placement Agreements, with other financial
institutions.
2. Services to be Performed as Private Placement Agent.
2.1 The Private Placement Agent undertakes to use its best
efforts, consistent with its other business, to secure purchasers of the Shares
on behalf of the Trust. Neither the Private Placement Agent nor any employees,
officers or agents thereof shall make any offer or sale of the Shares in a
manner that would require the Shares to be registered under the Securities Act
of 1933, as amended (the "1933 Act") or any of the laws governing the sale of
securities in the various states (the "Blue Sky Laws").
2.2 All activities by the Private Placement Agent and its
employees, officers and agents undertaken in the private placement of the Shares
shall comply with all applicable, laws, rules and regulations, including,
without limitation, all rules and regulations
adopted pursuant to the 1933 Act and the 1940 Act by the Securities and
Exchange Commission (the "Commission").
2.3 Nothing herein shall be construed to require the Trust or
the Private Placement Agent to accept any offer to purchase any shares.
Acceptance of such offers shall at all times be subject to the approval of the
officers of the Trust, who may act on the advice of counsel to the Trust, and
any purchases of Shares may be subject to rescission if such purchases would
require the Trust to register its shares under the 1933 Act or any applicable
Blue Sky Law.
2.4 The Trust shall furnish from time to time for use in
connection with the sale of the Shares such information with respect to the
Trust and the Shares as the Private Placement Agent may reasonably request.
2.5 The Trust represents to the Private Placement Agent that
all registration statements filed by the Trust with the Commission under the
1940 Act have been prepared in conformity with the requirements of such statute
and the rules and regulations promulgated by 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
Trust. The Trust represents and warrants to the Private Placement Agent that the
registration statement shall contain all statements required to be stated
therein in conformity with both the 1933 Act, the 1940 Act and the rules and
regulations promulgated thereunder; that all statements of fact in any
registration statement shall be true and correct in all material respects at the
time of filing such registration statement or amendment thereto; and that no
registration statement will include an untrue statement 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 the Shares. The Trust shall not file
any material amendment to any registration statement without giving the Private
Placement Agent advance notice; provided, however, that nothing contained in
this Agreement shall in any way limit the Trust's right to file at any time such
amendment to any registration statement as the Trust may deem necessary or
advisable, such right being in all respects absolute and unconditional.
2.6 The Trust agrees to indemnify and hold harmless the
Private Placement Agent and each of its directors and officers and each person,
if any, who controls the Private Placement Agent within the meaning of Section
15 of the 1933 Act against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expense and reasonable counsel fees incurred in
connection therewith) arising out of or based upon: (i) any violation of the
Trust's representations or covenants herein contained; (ii) any allegation of
any wrongful act of the Trust or any of its representatives (other than the
Private Placement Agent or any of its employees or representatives or any other
person for whose acts the Private Placement Agent is responsible or is alleged
to be responsible (including any selected dealer or person through whom sales
are made pursuant to an agreement with the Private Placement Agent)); (iii) any
allegation of any person acquiring any Shares, based upon the 1933 Act or any
other statute or common law, that the registration statements, Confidential
Offering Circulars or shareholder reports of the Trust included an untrue
statement of a material fact or omitted to state a material fact required to be
stated or necessary in order to make the statements not misleading, except to
the extent the statement or omission was made in reliance upon, and in
conformity with, information furnished in writing to the Trust by or on behalf
of the Private Placement Agent; or (iv) any allegation that any promotional
material included an untrue statement of a material fact or omitted to state a
material fact required to be stated or necessary in order to make the statements
not misleading, to the extent that such statement or omission was made in
reliance
upon, and in conformity with, information furnished in writing to the Private
Placement Agent by the Trust. In no case (i) is the indemnity of the Trust in
favor of the Private Placement Agent or any person indemnified to be deemed to
protect the Private Placement Agent or any person against any liability to the
Trust or its security holders to which the Private Placement Agent or such
person would otherwise be subject by reason of willful misfeasance, bad faith or
ordinary negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this agreement, or (ii)
is the Trust to be liable under its indemnity agreement contained in this
Section 2.6 with respect to any claim made against the Private Placement Agent
or any person indemnified unless the Private Placement Agent or person, as the
case may be, shall have notified the Trust in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the Private
Placement Agent or any such person or after the Private Placement Agent or such
person shall have received notice of service on any designated agent. However,
except to the extent the Trust is harmed thereby, failure to notify the Trust of
any claim shall not relieve the Trust from any liability which it may have to
the Private Placement Agent or any person against whom such action is brought
other than on account of its indemnity agreement contained in this Section 2.6.
The Trust shall 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
claims, but if the Trust elects to assume the defense, the defense shall be
conducted by counsel chosen by it and satisfactory to the Private Placement
Agent, or person or persons, defendant or defendants in the suit. In the event
the Trust elects to assume the defense of any suit and retain counsel, the
Private Placement Agent, officers or directors or controlling person(s) or
defendant(s) in the suit, shall bear the fees and expenses of any additional
counsel retained by them. If the Trust does not elect to assume the defense of
any suit, it will reimburse the Private Placement Agent, officers or directors
or controlling person(s) or defendant(s) in the suit, for the reasonable fees
and expenses of any counsel retained by them. The Trust agrees to notify the
Private Placement Agent promptly 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.
2.7 The Private Placement Agent agrees to indemnify and hold
harmless the Trust and each of its Trustees and officers and each person, if
any, who controls the Trust within the meaning of Section 15 of the 1933 Act,
against any loss, liability, damages, claim or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, damages, claim
or expense and reasonable counsel fees incurred in connection therewith) arising
out of or based upon: (i) any violation of any of its representations or
covenants herein contained; (ii) any allegation of any wrongful act of the
Private Placement Agent or any of its employees or representatives or any other
person for whose acts the Private Placement Agent is responsible or is alleged
to be responsible (including any selected dealer or person through whom sales
are made pursuant to an agreement with the Private Placement Agent); (iii) any
allegation of any person acquiring any Shares, based on the 1933 Act or any
other statute or common law, that the registration statements, Confidential
Offering Circulars or shareholder reports included an untrue statement of a
material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading, to the extent that
such statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Trust by or on behalf of the Private
Placement Agent; or (iv) any allegation that any promotional material included
an untrue statement of a material fact or omitted to state a material fact
required to be stated or necessary in order to make the statements not
misleading, except to the extent that such statement or omission was made in
reliance upon, and in conformity with, information furnished in writing to the
Private Placement Agent by the Trust. In no case (i) is the indemnity of the
Private Placement Agent in favor of the Trust or any person indemnified to be
deemed to protect the Trust or any person against any liability to which the
Trust or such 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 its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Private Placement Agent to be liable under
its indemnity agreement contained in this Section 2.7 with respect to any claim
made against the Trust or any person indemnified unless the Trust or person, as
the case may be, shall have notified the Private Placement Agent in writing of
the claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Trust or any such person or after the Trust or such person shall
have received notice of service on any designated agent. However, failure to
notify the Private Placement Agent of any claim shall not relieve the Private
Placement Agent from any liability which it may have to the Trust or any person
against whom the action is brought other than on account of its indemnity
agreement contained in this Section 2.7. In the case of any notice to the
Private Placement Agent, it shall 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 claims, but if the Private Placement Agent elects to
assume the defense, the defense shall be conducted by counsel chosen by it and
satisfactory to the Trust, to its officers and Trustees and to any controlling
person(s) or any defendants(s) in the suit. In the event the Private Placement
Agent elects to assume the defense of any suit and retain counsel, the Trust or
controlling person(s) or defendant(s) in the suit shall bear the fees and
expenses of any additional counsel retained by them. If the Private Placement
Agent does not elect to assume the defense of any suit, it will reimburse the
Trust, its officers or Trustees, controlling person(s) or defendant(s) in the
suit, for the reasonable fees and expenses of any counsel retained by them. The
Private Placement Agent agrees to notify the Trust promptly of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any of the Shares.
2.8 The indemnities granted by the parties in this Section 2
shall survive the termination of this Agreement.
2.9 If and whenever the determination of net asset value is
suspended and until such suspension is terminated, no further orders for shares
shall be processed by the Private Placement Agent except for such unconditional
orders as placed with the Private Placement Agent before it had knowledge of the
suspension. In addition, the Trust reserves the right to suspend sales and the
Private Placement Agents authority to sell Shares if, in the judgement of the
Trust, it is in the best interests of the Trust to do so. Suspension will
continue for such period as may be determined by the Trust.
2.10 Except as otherwise noted in the Trust's Confidential
Offering Circular with respect to Placement Class Shares, as amended or
supplemented from time to time, all Placement Class Shares sold to investors by
the Private Placement Agent or the Trust will be sold at the offering price plus
any applicable sales charges described therein. The offering price for all
accepted subscriptions will be the net asset value per share, determined in the
manner described in the Trust's then current Confidential Offering Circular with
respect to the applicable series. The Trust shall in all cases receive the net
asset value per share on all sales and the Private Placement Agent shall be
entitled to the fees described below.
3. Fees. In consideration for the services described in Section 2
hereof and the incurring of expenses in connection therewith, the Private
Placement Agent shall receive fees at an annual rate of [0.25%] of the average
daily value of all Shares sold by the Private Placement Agent, such fee to be
paid in arrears at the end of each calendar quarter.
4. Capacity and Authority to Act. The Private Placement Agent and its
officers, employees and agents are not authorized to make any representations
concerning the Trust or the Shares to investors or prospective investors,
excepting only accurate communication of
factual information contained in the then-current Confidential Offering Circular
or such other communications as may be expressly authorized by the Trust. In
performing the services under this Agreement, the Private Placement Agent shall
act as an agent for the Trust. Upon request by the Trust, the Private Placement
Agent shall provide the Trust with copies of any materials which are generally
circulated by it to or prospective investors in the Trust.
5. Use of the Agent's Name. The Trust shall not use the Private
Placement Agent's name in any Confidential Offering Circular, sales literature
or other material relating to the Trust in a manner not approved by the Private
Placement Agent prior thereto in writing; provided, however, that the Private
Placement Agent's approval shall not be required for any use of its name which
merely refers accurately to the Private Placement Agent's appointment hereunder
or which is required by the Securities and Exchange Commission or any other
appropriate regulatory, governmental or judicial authority; provided, further,
that in no event shall such approval be unreasonably withheld or delayed.
6. Use of the Trust's Name. The Private Placement Agent shall not use
the name of the Trust (other than for internal use in connection with performing
its duties under this agreement) in a manner not approved by the Trust prior
thereto in writing; provided, however, that the approval of the Trust shall not
be required for the use of the Trust's name in connection with communications
permitted by Section 4 hereof or for any use of the Trust's name which merely
refers accurately to the Private Placement Agent's role hereunder or which is
required by the Securities and Exchange Commission or any other appropriate
regulatory, governmental or judicial authority; provided, further, that in no
event shall such approval be unreasonably withheld or delayed.
7. Security. The Private Placement Agent represents and warrants that,
to the best of its knowledge, the various procedures and systems which it has
implemented (including provision for twenty-four hours a day restricted access)
with regard to safeguarding from loss or damage attributable to fire, theft or
any other cause the Trust's records and other data and its records, data,
equipment, facilities and other property used in the performance of your
obligations hereunder are adequate and that the Private Placement Agent will
make such changes therein from time to time as in its judgment are required for
the secure performance of its obligations hereunder. The parties shall review
such systems and procedures on a periodic basis, and the Trust may from time to
time specify the types of records and other data of the Trust to be safeguarded
in accordance with this Section 7.
8. Compliance with Laws; Etc. The Private Placement Agent shall comply
with all applicable federal and state laws and regulations, including securities
laws. The Private Placement Agent xxxxxx agrees to maintain all records required
by law relating to transactions on the Shares, and upon the Trust's request
promptly make such of these records available to the Trust's administrator as
are requested. The Private Placement Agent represents and warrants to the Trust
that the performance of all its obligations hereunder will comply with all
applicable laws and regulations, including, without limitation, the requirements
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules promulgated by the National Association of Securities Dealers (the "NASD")
the provisions of the Private Placement Agent's charter documents and by-laws
and all material contractual obligations binding upon it. The Private Placement
Agent furthermore undertakes that it will promptly inform the Trust of any
change in applicable laws or regulations (or interpretations thereof) or in its
charter or by-laws or material contracts which would prevent or impair full
performance of any of its obligations hereunder.
9. Broker-Dealer Registration. At all times during the term of this
Agreement, the Private Placement Agent (and each representative and agent
thereof) shall remain registered
and in good standing as a broker dealer (or representative or agent thereof)
with the Commission and any and all applicable jurisdictions in which the Shares
are sold whose Blue Sky Laws require the registration of the Private Placement
Agent as a broker dealer or the registration of its representatives or agents
operating in the relevant jurisdiction. The Private Placement Agent shall
immediately notify the Trust if any regulatory agency or other governmental
entity takes any action that would adversely affect its continued status as a
registered broker-dealer (or representative or agent thereof) in good standing
with any such regulatory ageny or governmental entity, including, but not
limited to, the Commission. This Section 9 shall in no way be construed to limit
or otherwise modify the Private Placement Agent's obligation to comply with all
applicable laws as stated in Section 8 above.
10. Reports. To the extent requested by the Trust from time to time,
the Private Placement Agent agrees that it will provide the Trust with a written
report of the amounts expended by it pursuant to this Agreement and the purposes
for which such expenditures were made. Such written reports shall be in a form
satisfactory to the Trust and shall supply all information necessary for the
Trust to discharge its responsibilities under applicable laws and regulations.
11. Record Keeping.
11.1. Section 31(a), Etc. The Private Placement Agent shall
maintain records in a form acceptable to the Trust and in compliance with
applicable laws and the rules and regulations of the Securities and Exchange
Commission, including but not limited to the record-keeping requirements of
section 31(a) of the Investment Company Act 1940, as amended (the "1940 Act"),
and the rules thereunder. Such records shall be deemed to be the property of the
Trust and will be made available, at the Trust's reasonable request, for
inspection and use by the Trust, representatives of the Trust and governmental
authorities. The Private Placement Agent agrees that, for so long as it retains
any records of the Trust, it will meet all reporting requirements pursuant to
the 1940 Act with respect to such records.
11.2. Transfer of Customer Data. In the event this Agreement
is terminated or a successor to the Private Placement Agent is appointed, the
Private Placement Agent shall, at the expense of the Trust, transfer to such
designee as the Trust may direct a certified list of the shareholders of the
Trust serviced by the Private Placement Agent (with name, address and tax
identification or Social Security number), a complete record of the account of
each such shareholder and the status thereof, and all other relevant books,
records, correspondence and other data established or maintained by the Private
Placement Agent under this Agreement. In the event this Agreement is terminated,
the Private Placement Agent will use its best efforts to cooperate in the
orderly transfer of such duties and responsibilities, including assistance in
the establishment of books, records and other data by the successor.
11.3. Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this Section 11 shall survive the
termination of this Agreement.
12. Force Majeure. The Private Placement Agent shall not be liable or
responsible for delays or errors by reason of circumstances beyond its control,
including, but not limited to, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdown, flood or
catastrophe, Acts of God, insurrection, war, riots or failure of communication
or power supply.
13. Insurance. The Private Placement Agent shall maintain reasonable
insurance coverage against any and all liabilities which may arise in connection
with the performance of its duties hereunder. The Private Placement Agent shall
provide information with respect to the extent of such coverage upon the Trust's
request.
14. Notices. All notices or other communications hereunder to either
party shall be in writing and shall be deemed sufficient if mailed to such party
at the address of such party set forth in this Agreement or at such other
address as such party may have designated by written notice to the other.
15. Further Assurances. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
16. Termination. This Agreement may be terminated by the Trust, without
the payment of any penalty, at any time upon not more than 60 days' nor less
than 30 days' notice to you, by a vote of a majority of the Board of Trustees of
the Trust who are not "interested persons" of the Trust (as defined in the 1940
Act) and have no direct or indirect financial interest in the operation of the
Trust's Plan of Distribution (the "Plan"), this Agreement or any other agreement
related to such Plan, or by "a vote of a majority of the outstanding voting
securities" (as defined in the 1940 Act) of the Trust. The Private Placement
Agent may terminate this Agreement upon not more than 60 days' nor less than 30
days' notice to the Trust. Notwithstanding anything herein to the contrary, this
Agreement may not be assigned and shall terminate automatically without notice
to either party upon any assignment. Upon termination hereof, the Trust shall
pay such compensation as may be due the Private Placement Agent as of the date
of such termination.
17. Changes; Amendments. This Agreement may be changed or amended only
by written instrument signed by both parties.
18. Limitation of Liability. The Master Trust Agreement dated October
30, 1996, as amended from time to time, establishing the Trust, which is hereby
referred to and a copy of which is on file at the offices of the Trust, provides
that the name of the Trust means the Trustees from time to time serving (as
Trustees but not personally) under said Master Trust Agreement. It is expressly
acknowledged and agreed that the obligations of the Trust hereunder shall not be
binding upon any of the shareholders, Trustees, officers, employees or agents of
the Trust, personally, but shall bind only the trust property of the Trust, as
provided in its Master Trust Agreement. The execution and delivery of this
Agreement have been authorized by the Trustees of the Trust and signed by an
officer of the Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
its Master Trust Agreement.
19. Series. The Trust is a series trust with multiple series and has
entered into this agreement on behalf of those series, as amended from time to
time on notice to the Private Placement Agent. With respect to any obligation of
the Trust on behalf of any series arising hereunder, the Private Placement Agent
shall look for payment or satisfaction of such obligations solely to the assets
and property of the series to which such obligation relates as though the Trust
had separately contracted with the Private Placement Agent by separate written
instrument with respect to each Private Placement Agent. In addition, this
agreement may be terminated with respect to one or more Private Placement Agent
without affecting the rights, duties or obligations of any of the other Private
Placement Agent.
20. Miscellaneous. This Agreement shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts
without giving effect to the conflicts of laws provisions thereof. The captions
in this Agreement are included for convenience of reference only and in no way
define or limit any of the provisions hereof or otherwise affect their
construction or effect. This Agreement has been executed on behalf of the Trust
by the undersigned not individually, but in the capacity indicated. This
Agreement shall be effective when accepted by you below.
[Remainder of page intentionally left blank.]
Please confirm your agreement hereto by signing and returning the
enclosed counterpart of this Agreement at once to: Merrimac Funds, 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: President. Upon receipt thereof,
this Agreement and such signed duplicate copy will evidence the agreement
between us.
Merrimac Funds
By:___________________________________
Name:
Title:
ACCEPTED:
[ ]
(Private Placement Agent)
By:__________________________________
Name:
Title:
Dated:_________________________________
