FORM OF AMENDED AND RESTATED DISTRIBUTION AGREEMENT
AMENDED AND RESTATED AGREEMENT made as of [_____] between OLD MUTUAL
ABSOLUTE RETURN FUND, L.L.C., a Delaware limited liability company (the "Fund"),
and OLD MUTUAL INVESTMENT PARTNERS, a Delaware corporation (the "Distributor").
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;
WHEREAS, the Fund is authorized to issue units of limited liability company
interests in the Fund ("Units") 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");
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;
WHEREAS, the Fund and the Distributor entered into a Distribution
Agreement, dated as of October 18, 2006 (the "Original Agreement"), pursuant to
which the Distributor agreed to furnish the services described herein to the
Fund; and
WHEREAS, the Distributor and the Fund now wish to amend and restate the
Original Agreement in its entirety;
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 its non-exclusive distributor in connection
with the distribution of the Units, and the Distributor hereby accepts such
appointment.
(b) The Distributor agrees to use its reasonable best efforts to
offer and sell Units to investors that the Distributor reasonably believes meet
the eligibility requirements set forth in the Registration Statement.
(c) Unless otherwise agreed by the parties hereto, Larch Lane
Advisors LLC, the Fund's investment adviser (the "Investment Adviser"), or SEI
Investments Global Funds Services, the Fund's administrator (the
"Administrator") shall be responsible for reviewing each investor certificate
("Investor Certificate") to confirm that it has been completed in accordance
with the instructions thereto. The Fund, the Investment Adviser or the
Administrator, in its or their sole discretion, may return to the Distributor
any Investor Certificate that is not completed
to its or their satisfaction and the Fund shall be under no obligation
to accept any Investor Certificate.
(d) The Distributor acknowledges that Units will be offered and
sold only as set forth in the Registration Statement and the Fund's Limited
Liability Company Agreement.
(e) The Fund may suspend or terminate the offering of the Units at
any time as to specific classes of investors (if such separate classes are
established), 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 Units 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 Units or to purchase any Units for its
own account. The Fund shall be entitled to appoint additional distributors.
Section 2. AGENCY. In offering Units, 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 Managers of the Fund or of the members of
the Fund (the "Members"), all necessary action to fix the number of authorized
Units 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 Units as the Distributor reasonably
may be expected to sell.
(b) For purposes of the offering of Units, 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 Units. 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 Units 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 depicted in
Section 1), the Distributor shall facilitate and assist in the provision by
broker-dealers and other intermediaries of investor services ("Member Services")
to Members that are customers of such broker-dealers and other
intermediaries. Member Services refers principally to handling inquiries from
Members regarding the Fund or their investments in the Fund.
(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
Selected Dealers (as defined below), the collection of amounts payable by
investors and Selected Dealers 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.
Section 5. SELECTED DEALER AGREEMENTS
(a) The Distributor shall have the right to enter into selected
dealer agreements (substantially in the form included in SCHEDULE A) with the
securities dealers listed in SCHEDULE B or such other securities dealers deemed
by the Distributor to be well positioned to (i) sell Units and (ii) provide, or
arrange for the provision of, Member Services to Members ("Selected
Dealers"); provided that the Distributor shall periodically inform the Fund's
Board of Managers of its entrance into a selected dealer agreement. Units sold
to Selected Dealers shall be for resale by such dealers only. Notwithstanding
the foregoing, the Distributor may enter into a selected dealer agreement that
is materially different than the form included in SCHEDULE A so long as the
Distributor receives the consent of the Fund's Board of Managers, including a
majority of the managers who are not "interested persons," as such term is
defined by the Investment Company Act, of the Fund.
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(b) Within the United States, the Distributor shall offer and sell
Units only to such Selected Dealers as are members in good standing of FINRA.
Section 6. FEES
(a) The Distributor is entitled to charge a sales load to each
investor on the purchase price of its Units of up to 2%. The specific amount of
the sales load paid with respect to a Member is generally dependent on the size
of the investment in the Fund. The sales load will be charged as a percentage
of an investor's investment amount. The sales load will not constitute an
investment made by the investor in the Fund. The sales load may be adjusted or
waived at the sole discretion of the applicable Selected Dealer in consultation
with the Fund, and is expected to be waived for the Investment Adviser and its
affiliates, including the directors, partners, principals, officers and
employees of each of these entities, and employees of the Selected Dealers and
certain of their affiliates.
(b) As compensation for the sale and marketing of Units as well as
providing Member Services, the Fund will pay the Distributor a monthly fee at an
annual rate of 0.70% of the net assets of the Fund as of the end of the
month, after adjustment for any purchases and repurchases of Units during the
month, and will be due and payable in arrears within 30 business days after the
end of such month (the "Marketing and Member Servicing Fee").
(c) The Distributor may pay amounts pursuant to this Section 6 to
any affiliated person of the Distributor if such affiliated person is a Selected
Dealer.
(d) The Investment Adviser (or its affiliates), in its discretion
and from its own resources, may pay the Distributor additional compensation not
to exceed 0.625% (on an annual basis) of the aggregate value of outstanding
Units held by Members (the "Additional Compensation").
(e) In accordance with applicable FINRA Rules, the Distributor
shall cap the sale load it receives from investors at 2%. Further, pursuant to
limitations imposed by FINRA: (i) the Marketing and Member Servicing Fee will be
capped at 6% of the total proceeds to be received by the Fund in respect of
sales of Units registered under the Fund's current Registration Statement (the
"Offering Proceeds"); and (ii) the Additional Compensation paid by the
Investment Adviser (or its affiliates) to the Distributor will be capped at 2%
of the Offering Proceeds.
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).
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(b) The Fund shall bear any cost and expenses of qualification of
the Units 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
Selected Dealers 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 or its affiliates shall bear the costs and expenses of printing and
distributing any copies thereof which are to be used in connection with the
offering of Units to Selected Dealers 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 Selected Dealers in connection with the offering of the Units 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 Units, 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 Members of the Fund, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, unless such statement or omission was made in reliance
upon, and in conformity with, information furnished to the Fund in connection
therewith by or on 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 Members 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
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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 Managers in connection with the issuance or sale of any
of the Units.
(b) The Distributor shall indemnify and hold harmless the Fund and
each of its Managers and officers and each person, if any, who controls the Fund
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 Members. 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 as of the date first
above written and shall remain in force for two years thereafter and thereafter
continue from year to year, but only so long as such continuance is specifically
approved at least annually (i) by the Managers 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 Managers 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 Managers 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 Units 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
Managers or by the vote of a majority of outstanding voting securities of the
Fund and (ii) by the vote of a majority of those
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Managers 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.
OLD MUTUAL ABSOLUTE RETURN FUND, L.L.C.
By: __________________________________
Name:
Title:
OLD MUTUAL INVESTMENT PARTNERS
By: __________________________________
Name:
Title:
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SCHEDULE A
SELECTED DEALER AGREEMENT
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"), has an agreement with Old Mutual Absolute Return Fund, L.L.C. (the
"Fund"), pursuant to which it acts as the distributor for the sale of units of
limited liability company interests in the Fund ("Units") and facilitates and
assists in the provision by broker-dealers and other intermediaries of personal
investor services and account maintenance services. Capitalized terms not
defined herein shall have the meaning ascribed to them in the Fund's
prospectus, as amended or supplemented from time to time (the "Prospectus").
The Fund is a closed-end registered management investment company
established as a limited liability company under the laws of the State of
Delaware. Units are intended to be offered and sold by the Fund only to persons
who meet the standards of investor eligibility as set forth in the Prospectus
and the investor certifications (the "Investor Certification") (each, an
"Eligible Investor"). We have delivered or will deliver to the undersigned
broker-dealer (the "Selling Dealer" or "you"), for delivery to prospective
purchasers of Units, copies of the Prospectus, the Investor Certification, the
organizational documents and other relevant written information approved and
furnished by the Fund for use by such prospective purchasers in connection with
their purchase of Units (collectively, the "Offering Documents").
We hereby appoint you as a selling dealer with respect to the offering
of Units, and you hereby accept such appointment, upon the following terms and
conditions:
1. In making available Units to your customers, you are acting as agent
for your customers. You agree on a non-exclusive basis to use reasonable
efforts to solicit and receive offers to purchase Units upon the terms and
conditions set forth in this Agreement and the Prospectus, provided that you
shall have no obligation to offer or sell any Units.
2. Orders 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 Fund shall forward from time
to time to you. All orders are subject to acceptance or rejection by the
Distributor or the Fund in the sole discretion of either, provided that, upon
any such rejection the Distributor or the Fund, as the case may be, shall
promptly advise you of such rejection. The minimum initial and subsequent
purchase requirements are as set forth in the Prospectus.
3. (a) You agree to provide the member services specified in ANNEX A
to your customers who own Units.
(b) In connection with the offer and sale of Units, we authorize you
to collect and retain the upfront sales loads specified in ANNEX B.
Furthermore, we agree to pay you the upfront payment for initial purchases of
Units and the annual marketing and member servicing fees as specified in
ANNEX B; provided, however, that in respect of the payment of marketing and
member servicing fees, in no event
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shall we be required to pay any amounts in excess of: (i) the marketing and
member servicing fees actually paid by the Fund to us; and (ii) the FINRA cap
described in ANNEX B and in the Prospectus. Furthermore, beginning on the first
month in which your customer ceases to hold Units, you shall no longer be
entitled to any marketing and member servicing fees in respect of such Units.
If there is any conflict between a term of ANNEX B and a term of the Prospectus,
the term of the Prospectus shall prevail. We represent that there is currently
no conflict between a term of ANNEX B and a term of the Prospectus. We agree to
advise you of, and to provide you with copies of, any amendments or supplements
or additions to the Offering Documents reasonably in advance of the filing (if
applicable) or first use thereof.
4. (a) You agree that any Units shall be offered and sold only in
accordance with the terms and conditions set forth in this Agreement and each of
the Offering Documents.
(b) You will only: (1) submit Investor Certifications to us on behalf
of prospective investors who you have determined, after reasonable inquiry, to
be Eligible Investors; and (2) solicit and receive offers to purchase Units (i)
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 (ii) in compliance with applicable state securities or Blue
Sky laws. You shall comply with all applicable laws, rules or regulations in
connection with your activities under this Agreement.
(c) You agree that: (1) 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 the Fund is an Eligible Investor; and
(2) you will prohibit the use of offering materials for distribution to or use
by prospective purchasers of Units, other than the Offering Documents furnished
by the Fund unless you have obtained our prior written consent, which consent
shall not be unreasonably withheld.
(d) You shall not place orders for any Units unless you have already
received orders for such Units from your customers: (1) at the applicable public
offering price and subject to the terms of this Agreement, and the Prospectus;
and (2) who you reasonably believe meet all requirements to be eligible to
purchase Units at the time the order is submitted.
(e) You represent that in transmitting any order for Units that the
prospective investor for whom you transmit the order has signed the Investor
Certification and that you have determined that the Units are a suitable
investment for the prospective investor.
(f) You agree to deliver to each of your customers making purchases a
copy of the then current Prospectus prior to the time of offering or sale.
Except to the extent sent directly to investors by the Fund and subject to
receipt of such material from Distributor, you agree thereafter to deliver to
such investors copies of the annual and interim reports, and proxy solicitation
and tender offer materials of the Fund. You further agree in connection with
any proxy solicitation, to use reasonable best efforts to obtain proxies from
such purchasers and forward such proxies to the Fund. Copies of the Offering
Documents, as amended or supplemented from time to time, annual or interim
reports, and proxy solicitation and tender offer materials of the Fund will be
supplied to you in reasonable quantities upon your request and at the Fund's
expense.
(g) You agree, represent and warrant that, as of the date hereof and
for so long as this Agreement is in effect: (1) you are a broker-dealer
registered under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and a member in good standing with FINRA. You agree to notify us
promptly if you cease to be registered or licensed as a broker or dealer, or
fail to be a member in good standing of FINRA; (2) you are duly authorized to
enter into this Agreement, and this Agreement has been duly authorized,
executed and delivered by you and constitutes your legal, valid and binding
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agreement enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally, and by general principles of equity; (3) neither
the execution and delivery by you, nor the performance by you of your
obligations under this Agreement will contravene any provision of applicable
law or your certificate of formation or any agreement or other instrument
binding on you that is material to you or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over you and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by you of your obligations under
this Agreement, except such as may be required by the securities or "blue sky"
laws of the various States in connection with the offer and sale of the Units;
(4) you have been duly formed and are validly existing as a __________________
in good standing under the laws of the State of _____________ with power and
authority to own your properties and conduct your business and to enter into
and perform your obligations under this Agreement; (5) in connection with the
offer, sale, or tender of Units, you shall be the broker of record for such
transactions between the Fund and your customers and you shall comply with all
applicable interpretations and guidance from FINRA and with all the applicable
Federal and State securities laws, including without limitation, suitability,
know your client, anti-money laundering, prospectus delivery, furnishing
confirmations pursuant to Rule 10b-10 under the 1934 Act, and providing
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
Units; and (6) you agree to promptly advise the Distributor if you receive
notice of any investor legal complaint, litigation initiated, or communication
by a regulatory authority which relates to the Fund or to a transaction in
Units by you on behalf of an investor, and you agree to provide us information
and documentation thereon as we may reasonably request, subject to
confidentiality obligations and proprietary rights.
(h) You agree to notify us promptly 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.
(i) You hereby certify that you have established and maintain an
anti-money laundering ("AML") 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 regulations in your
jurisdiction including, where applicable, the USA PATRIOT Act of 0000 (xxx
"Xxxxxxx Xxx"). You represent and warrant that any money contributed to the
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 that
any investor introduced to the Fund by you shall not be a person or entity
listed in Executive Order 13224, Blocking Terrorist 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/xxxxxxxxx.xxxx. 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, if any, and, upon our request.
Upon filing a Section 314 notice you agree to forward a copy to us, and further
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.
(j) You acknowledge that we are subject to the privacy regulations
under Title V of the Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. 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: (1) you
shall not disclose or use any Client Data
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except to the extent necessary to carry out your obligations under this
Agreement and for no other purpose; (2) 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; (3) you
shall maintain, and shall require all third parties approved under subsection
(2) to maintain, effective information security measures to protect Client Data
from unauthorized disclosure or use; and (4) 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 the
purposes of this Agreement, Client Data means the nonpublic personal
information (as defined in 15 U.S.C. 6809(4)) of our clients or prospective
clients (and/or our parent, affiliated or subsidiary companies) received by you
in connection with the performance of its obligations under the Agreement,
including, but not limited to: (i) an individual's name, address, e-mail
address, IP address, telephone number and/or social security number; (ii) the
fact that an individual has a relationship with us and/or our parent,
affiliated or subsidiary companies; or (iii) an individual's account
information.
(k) You shall not pay any commission, fee or other remuneration to any
person or entity (other than an employee) for soliciting any potential investor
in the Fund except pursuant to an arrangement which is approved by the Fund in
advance of such solicitation.
(l) We agree, represent and warrant that, as of the date hereof and
for so long as this Agreement is in effect: (1) we are duly authorized to enter
into this Agreement, and otherwise to act on behalf of the Fund pursuant to the
applicable distribution agreement of the Fund, or by some other proper
authority; (2) we are a broker-dealer registered under the 1934 Act and a member
of FINRA, that such membership has not been suspended, and that we agree to
maintain membership in FINRA; (3) in respect of the distribution of Units, we
agree to abide by the provisions of the Investment Company Act of 1940, as
amended, the Securities Act of 1933, as amended (the "1933 Act"), and the 1934
Act, and all applicable rules and regulations of the Securities and Exchange
Commission and FINRA, including without limitation, the FINRA Rules of Conduct;
(4) this Agreement has been duly authorized, executed and delivered by us and
constitutes our legal, valid and binding agreement enforceable in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally, and
by general principles of equity; (5) neither the execution and delivery by us,
nor the performance by us of our obligations under this Agreement will
contravene any provision of applicable law or our certificate of formation or
operating agreement or any agreement or other instrument binding upon us that is
material to us or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over us, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by us of our obligations under this Agreement, except such as
may be required by the securities or "blue sky" laws of the various States in
connection with the offer and sale of the Units; and (6) we have been duly
formed and are validly existing as a business trust in good standing under the
laws of the State of Pennsylvania with power and authority to own our properties
and conduct our business and to enter into and perform our obligations under
this Agreement.
5. You shall indemnify and hold harmless the Distributor, the Fund and
each person affiliated with the Distributor or the Fund, 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 your violation of any of the provisions of this
Agreement.
12
6. As a Selling Dealer, you are hereby authorized: (1) to place orders
directly with the Fund for Units to be sold to your customers subject to the
applicable terms and conditions governing the placement of orders and subject to
the compensation provisions set forth in this Agreement and the Prospectus, and
(2) to arrange for the redemption or tender of Units by your customers directly
to the Fund or its tender agent subject to the applicable terms and conditions
set forth in this Agreement, the Prospectus and the applicable tender offer.
7. Payment for Units purchased by your customers shall be made no later
than the settlement date specified in the confirmation by Federal Funds wire.
Payment may be made prior to the settlement date by Federal Funds wire to the
escrow agent as specified in the Prospectus. If such payment is not received by
us, we reserve the right, without notice, to cancel the purchase, and we may
hold you responsible for any direct loss suffered by us or by the Fund resulting
from your failure to make payment as aforesaid.
8. If any Units sold to your customers under the terms of this Agreement
are repurchased by the Fund or by us for the account of the Fund or are tendered
for redemption within seven days after the date of the confirmation of the
original purchase, it is agreed that you shall forfeit your right to, and
refund to us, any compensation received by you in respect of such Units. In
addition, if any Units sold to your customers under the terms of this Agreement
are repurchased by the Fund or by us for the account of the Fund or are tendered
for redemption within twelve months after the effective date of the original
purchase, it is agreed that you shall refund to us a pro-rata portion of the
compensation received by you (from us) in respect of such Units. The "pro-rata"
refunded portion shall be calculated based upon the number of months that the
Units were not held by your customer(s) during the first twelve month period
following the original purchase. (Thus, for example, if the Units were held
only for three months, then you will be obligated to refund 9/12ths or ths of
the compensation you received from us.)
9. No person is authorized to make any representations concerning Units
except those contained in the Offering Documents. In making Units available to
your customers you shall rely solely on the representations contained in the
Offering Documents and supplemental information above mentioned. Any
information that we furnish to you other than the Offering Documents, periodic
reports and proxy solicitation and tender offer material is our sole
responsibility and not the responsibility of the Fund, and you agree that the
Fund shall not have any liability or responsibility to you in these respects
unless expressly assumed in connection therewith. You shall not use through the
internet or otherwise any sales literature or advertisement regarding the Fund
without our prior written consent, which consent shall not be unreasonably
withheld, unless it is solely a listing of product offerings or has been
provided by us for such purpose.
10. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Units entirely or to certain persons or
entities in a class or classes specified by us, provided that upon any such
suspension or withdrawal we shall immediately advise you of such suspension or
withdrawal. Each party hereto has the right to cancel this agreement upon
written notice to the other party. Cancellation will not affect any outstanding
order or transaction, or any legal right or obligations which may have arisen
prior to cancellation. Upon cancellation of this Agreement, we will continue to
pay you the compensation set forth in Section 3 for the duration of each of your
clients' investment in the Fund (subject to FINRA Conduct Rules) and, for
purposes hereof, you will be entitled to the compensation set forth in Section 3
with respect to any person introduced by you to us prior to cancellation who
invests in the Fund within the 60 days following cancellation. The provisions
of Sections 3, 5 and 12 will survive cancellation of this Agreement. This
Agreement may be amended with the prior written mutual agreement of each party
hereto.
13
11. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the offering of the Units.
Nothing contained in this paragraph is intended to operate as, and the
provisions of this paragraph shall not in any way whatsoever constitute, a
waiver by either party of compliance with any provision of the 1933 Act, the
Advisers Act, or of the rules and regulations of the Securities and Exchange
Commission issued thereunder.
12. The parties agree to keep 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 12 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.
13. We will be responsible for the filing with the States of
notifications of the intention to sell Units and will use our reasonable efforts
to file such notifications of the intention to sell Units in each jurisdiction
in which the Units are to be offered by you. We will inform you as to the
States in which such notifications of the intention to sell Units have been duly
made or where no such notification is required, but we otherwise assume no
responsibility or obligation as to your right to sell Units in any jurisdiction.
Units may only be offered or sold to U.S. persons in States where notifications
regarding the Units have been duly filed or where no such notifications are
required.
14. All representations, warranties and agreements contained in this
Agreement or contained in certificates of any party hereto submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by, or on behalf of, either party or any person who controls
any of the foregoing and shall survive delivery and be restated and reaffirmed
as of the placement of each order under this Agreement.
15. All communications to us shall be sent to the address below. Any
notice to you shall be duly given if mailed or faxed to you at the address
specified by you below.
16. Nothing in this Agreement shall limit our right to make other
arrangements with respect to the Units with any person, including the
appointment of other selling dealers.
17. No provision of this Agreement shall be construed in favor of or
against any party by reason of the extent to which any such party, its
affiliates or their respective employees or counsel participated in the drafting
thereof.
18. 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 Units. 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.
19. This Agreement shall be governed by the laws of the State of
Pennsylvania without reference to conflicts of law principles.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
14
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date written below.
OLD MUTUAL INVESTMENT PARTNERS
By: __________________________________
Name: _______________________________
Title: ______________________________
Accepted:
_____________________________
(authorized signature)
Firm Name: ___________________________
Print Name: __________________________
Title: _______________________________
Address: _____________________________
Telephone: ___________________________
Email Address: _______________________
Date: ________________________________
Please sign both copies and return one copy via US Mail to:
----------------------------------------------------------
Old Mutual Investment Partners
0000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
15
ANNEX A
The following services constitute the member services referenced in Section
3(a) of this Agreement:
1. handling inquiries from your customers who own Units ("Members")
regarding the Fund, including but not limited to questions concerning their
investments in the Fund, and reports and tax information provided by the Fund;
2. assisting in the enhancement of relations and communication between
Members and the Fund;
3. assisting in the establishment and maintenance of Members' accounts with
the Fund;
4. assisting in processing repurchase requests from Members;
5. assisting in the maintenance of Fund records containing Member
information, such as changes of address; and
6. providing such other similar services as we may reasonably request to the
extent you are permitted to do so under applicable statutes, rules and
regulations.
A-1
ANNEX B
1. You shall be entitled to charge an upfront sales load of up to 2% of
an investor's investment amount.
2. In addition, you shall be entitled to an upfront fee, to be paid by
the Distributor, equal to 1.00% of the amount of Units purchased by investors
you introduce to the Fund. This one-time payment shall be payable within 15
days of the effective date of the investor's investment in the Fund (i.e.,
within 15 days of the date as of which the investor is a Member of the Fund).
3. Thereafter, beginning on the 13th month following the effective date
of initial purchase of Units by investors you introduced to the Fund, you shall
also be entitled to receive a monthly marketing and member servicing fee at an
annual rate of 0.70% of the aggregate value of such Units. The fee shall be
calculated based on the net asset value of the Units as of the end of the
applicable month and shall be payable in arrears within 30 days after the end of
such month.
B-1
SCHEDULE B
[TO COME]
