DISTRIBUTION AGREEMENT
AGREEMENT made as of February 8, 2007 between OLD MUTUAL 2100 EMERGING
MANAGERS INSTITUTIONAL 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 limited liability company
interests in the Fund ("Interests") 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; and
WHEREAS, the Fund and the Distributor wish to enter into an agreement
with each other with respect to the offering of the Fund's Interests.
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 Interests, and the Distributor hereby accepts such
appointment.
(b) The Distributor agrees to use its reasonable best efforts to offer
and sell Interests 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, 0000 Xxxxx Xxxx
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 Interests 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 Interests 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 Interests 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 Interests or to purchase any Interests
for its own account. The Fund shall be entitled to appoint additional
distributors.
Section 2. AGENCY. In offering Interests, 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
Interests 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 Interests as the Distributor
reasonably may be expected to sell.
(b) For purposes of the offering of Interests, 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 Interests. 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 Interests 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 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.
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(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 providing services to the Fund under this Agreement
(as depicted in Section 1), the Distributor shall seek to retain Member Service
Providers (as defined below) and facilitate and assist in the provision of
investor services ("Member Services") to Members that are customers of the
Member Service Providers (as defined below).
(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 Member
Service Providers (as defined below), the collection of amounts payable by
investors and Member Service Providers on such sales, and the cancellation of
unsettled transactions, as may be necessary to comply with the requirements of
the NASD, as such requirements may from time to time exist.
Section 5. MEMBER SERVICE PROVIDER AGREEMENTS
(a) The Distributor shall seek to enter into member service provider
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 Interests and (ii) provide,
or arrange for the provision of, Member Services to Members ("Member Service
Providers") as well as the services included in Annex A to the member service
provider agreement; provided that the Distributor shall periodically inform the
Fund's Board of Managers of its entrance into a member service provider
agreement. Interests sold to Member Service Providers shall be for resale by
such Member Service Providers only. Notwithstanding the foregoing, the
Distributor may enter into a member service provider 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.
(b) Within the United States, the Distributor shall offer and sell
Interests only to such Member Service Providers as are members in good standing
of the NASD.
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Section 6. FEES
(a) As compensation for providing services under this Agreement, the
Fund will pay the Distributor a monthly fee at an annual rate of 0.55%, through
the period ending March 31, 2008, of the net assets of the Fund as of the end of
the month, after adjustment for any purchases and repurchases of Interests
during the month, and will be due and payable in arrears within 30 business days
after the end of such month (the "Member Servicing Fee"). Following March 31,
2008, the Member Servicing Fee will decrease to an annual rate of 0.50%.
(b) The Distributor may pay amounts pursuant to this Section 6 to any
affiliated person of the Distributor if such affiliated person is a Member
Service Provider.
(c) Parties understand and agree that, pursuant to limitations imposed
by the NASD, no payments will be made to the Distributor and any other NASD
member exceed, in the aggregate, 8% of the total proceeds proposed to be
received by the Fund in respect of sales of Interests registered under the
Fund's current registration statement on Form N-2 (the "Registration
Statement").
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
the NASD and preparing and mailing annual and interim reports and proxy
materials to members (including but not limited to the expense of setting in
type any such registration statements, or interim reports or proxy materials).
(b) The Fund shall bear any cost and expenses of qualification of the
Interests 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
Member Service Providers as outlined in the member service provider agreements.
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 Interests to Member Service Providers or
potential 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 Member Service Providers
in connection with the offering of the Interests for sale to the public and any
expenses of advertising incurred by the Distributor in connection with such
offering.
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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 Interests, 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 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 Interests.
(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
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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 Interests 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 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 2100 EMERGING MANAGERS
INSTITUTIONAL FUND, L.L.C.
By: __________________________________
Name:
Title:
OLD MUTUAL INVESTMENT PARTNERS
By: __________________________________
Name:
Title:
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SCHEDULE A
MEMBER SERVICE PROVIDER AGREEMENT
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"),
which is a member firm of the National Association of Securities Dealers, Inc.
("NASD"), has an agreement with Old Mutual 2100 Emerging Managers Institutional
Fund, L.L.C. (the "Fund"), pursuant to which it acts as the distributor for the
sale of limited liability company interests in the Fund ("Interests") 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. Interests 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 Interests, 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 Interests (collectively, the "Offering Documents").
We hereby appoint you as a selling dealer with respect to the
offering of Interests, and you hereby accept such appointment, upon the
following terms and conditions:
1. In making available Interests 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 Interests 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 Interests.
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 Interests.
(b) In connection with the offer and sale of Interests, we agree
to pay you the annual member servicing fees as specified in ANNEX B; provided,
however, that in no event shall we be required to pay any amounts in excess of:
(i) the member servicing fees actually paid by the Fund to us; and (ii) the NASD
cap described in ANNEX B and in the Prospectus. Furthermore, beginning on the
first month in
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which your customer ceases to hold Interests, you shall no longer be entitled to
any member servicing fees in respect of such Interests. 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 Interests 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 Interests (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 the NASD) 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 Interests, 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 Interests unless you have
already received orders for such Interests 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 Interests at the time the order is submitted.
(e) You represent that in transmitting any order for Interests
that the prospective investor for whom you transmit the order has signed the
Investor Certification and that you have determined that the Interest is 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 the NASD. 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 the NASD; (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 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
9
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 Interests; (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 Interests, 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 the NASD
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 Interests; 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 Interests 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. ss. 6801 et
seq., pursuant to which regulations we are required to obtain certain
undertakings from you with regard to the privacy, use and protection of
nonpublic personal financial information of our clients or prospective clients.
Therefore, notwithstanding anything to the contrary contained in this Agreement,
you agree that: (1) you shall not disclose or use any Client Data 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
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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. ss. 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 the NASD, that such membership has not been suspended, and that we agree to
maintain membership in the NASD; (3) in respect of the distribution of
Interests, we agree to abide by the provisions of the Investment Company Act of
1940, as amended, the 1933 Act, and the 1934 Act, and all applicable rules and
regulations of the Securities and Exchange Commission and the NASD, including
without limitation, the NASD 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 Interests; 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.
6. As a Selling Dealer, you are hereby authorized: (1) to place orders
directly with the Fund for Interests to be sold to your customers subject to the
applicable terms and conditions governing the
11
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
Interests 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 Interests 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 Interests 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 Interests. In
addition, if any Interests 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 Interests. The
"pro-rata" refunded portion shall be calculated based upon the number of months
that the Interests were NOT held by your customer(s) during the first twelve
month period following the original purchase. (Thus, for example, if the
Interests were held only for three months, then you will be obligated to refund
(9)/12ths or 3/4ths of the compensation you received from us.)
9. No person is authorized to make any representations concerning
Interests except those contained in the Offering Documents. In making Interests
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 Interests 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 NASD 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.
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 Interests.
Nothing contained in this paragraph is intended to
12
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 Interests and will use our reasonable
efforts to file such notifications of the intention to sell Interests in each
jurisdiction in which the Interests are to be offered by you. We will inform you
as to the States in which such notifications of the intention to sell Interests
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 Interests in any
jurisdiction. Interests may only be offered or sold to U.S. persons in States
where notifications regarding the Interests 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 Interests 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 Interests. 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.]
13
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date written below.
OLD MUTUAL INVESTMENT PARTNERS
By:
-----------------------------------------
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:
14
ANNEX A
The following services constitute the member services referenced in
Section 3(a) of this Agreement:
1. handling inquiries of your customers who own Interests in the Fund
("Members") regarding the Fund (for example, responding to questions concerning
capital account balances and reports and tax information provided by the Fund);
2. assisting in the enhancement of communications from the Fund;
3. assisting in the establishment and maintenance of Member accounts with the
Fund;
4. assisting in the maintenance of records; and
5. providing such other information and Member services as we may reasonably
request.
A-1
ANNEX B
Following the effective date of initial purchase of Interests by
investors you introduced to the Fund, you shall be entitled to receive a monthly
member servicing fee at an annual rate of 0.50% of the aggregate value of such
Interests. The fee shall be calculated based on the net asset value of the
Interests as of the end of the applicable month and shall be payable in arrears
within 30 days after the end of such month.
In accordance with applicable NASD Conduct Rules, the parties
understand and agree that, pursuant to limitations imposed by the NASD, no
payments will be made to you under this Agreement to the extent payments made to
us and any other NASD member (in connection with the sale of Interests) exceed,
in the aggregate, 8% of the total proceeds proposed to be received by the Fund
in respect of sales of Interests registered under the Fund's current
registration statement on Form N-2.
B-1
SCHEDULE B
[TO COME]
