FORM OF DEALER AGREEMENT John Hancock Funds, LLC 601 Congress Street Boston, Massachusetts 02210
[__________], 2012
[Name]
[Address]
[Address]
RE: At-the-Market Offerings by ▇▇▇▇ ▇▇▇▇▇▇▇ Investors Trust
Ladies and Gentlemen:
From time to time ▇▇▇▇ ▇▇▇▇▇▇▇ Funds, LLC (the “Manager”, “we” or “us”) will act as manager of
registered at-the-market offerings by ▇▇▇▇ ▇▇▇▇▇▇▇ Investors Trust, a Massachusetts business trust
(the “Fund”), of the Fund’s common shares of beneficial interest, no par value (the “Common
Shares”). In the case of such offerings, the Fund has agreed with the Manager to issue and sell
through or to the Manager, as sales agent and/or principal, a certain number of Common Shares.
We hereby agree to retain [__________] (the “Dealer” or “you”) as a sub-placement agent with
respect to such Common Shares as we may specify (the “Shares”) to be issued and sold by the Fund in
such offerings of the Shares (the “Offerings”), and you agree to act in such capacity, all upon,
and subject to, the terms and conditions set forth below:
SECTION 1. Description of Offerings.
(a) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Fund
and the Manager on any day (each, an “Offering Date”) that is a trading day for the exchange on
which the Fund’s Shares are listed and primarily trade (the “Stock Exchange”) (other than a day on
which the Stock Exchange is scheduled to close prior to its regular weekday closing time).
Promptly after the Fund and the Manager have determined the maximum amount of the Shares to be sold
by the Manager for any Offering Date, the Manager shall advise the Dealer of such amount, which
shall not in any event exceed the amount available for issuance under the currently effective
Registration Statement (as defined below). Subject to the terms and conditions hereof, the Dealer
shall use its reasonable efforts to sell all of the Shares designated in accordance with the plan
of distribution set forth in the Prospectus Supplement (as defined below). The gross sales price
of the Shares sold under this Section 1(a) shall be the market price at which the Dealer sells such
Shares.
(b) Notwithstanding the foregoing, the Manager may instruct the Dealer by telephone (confirmed
promptly by telecopy) not to sell the Shares if such sales cannot be effected at or above a price
agreed to by the Fund and the Manager with respect to such Shares. In addition, the Manager may,
upon notice to the Dealer by telephone (confirmed promptly by telecopy), suspend the offering of
the Shares; provided, however, that such suspension or termination shall not affect or impair the
parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of
such notice.
(c) The Dealer agrees not to make any sales of the Shares on behalf of the Manager pursuant to
this Section 1, other than through transactions for which compliance with Rule 153 under the
Securities Act will satisfy the prospectus delivery requirements of Section 5(b)(2) of the
Securities Act.
(d) The compensation to the Dealer, as a sub-placement agent of the Manager for each sale of
the Shares pursuant to this Section 1, shall be the Applicable Selling Agent Commission with
respect to the Shares sold, multiplied by the Gross Sales Proceeds, as further described in the
Addendum to this Agreement. The remaining proceeds, after further deduction for any transaction
fees imposed by any governmental or self-regulatory organization in respect of such sales, shall
constitute the net proceeds to the Manager for such Shares (the “Net Proceeds”).
(e) The Dealer shall provide written confirmation to the Manager following the close of
trading on the Stock Exchange on each Offering Date setting forth for each sale the number of
Shares sold, the time of sale, the Gross Sales Price per Share, the Net Proceeds, and the
compensation payable by the Manager to the Dealer with respect to such sales.
(f) Settlement for sales of the Shares pursuant to this Section 1 will occur on the third
business day following the date on which such sales are made (each such day, a “Settlement Date”).
On each Settlement Date, the Shares sold through the Dealer for settlement on such date shall be
delivered by the Manager to the Dealer against payment of the Net Proceeds for the sale of such
Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the
Dealer’s account at The Depository Trust Company in return for payments in same day funds delivered
to the account designated by the Manager. If the Manager shall default on its obligation to
deliver the Shares on any Settlement Date, the Manager shall (A) hold the Dealer harmless against
any loss, claim or damage arising from or as a result of such default by the Manager and (B) pay
the Dealer any commission to which it would otherwise be entitled absent such default. If the
Dealer breaches this Agreement by failing to deliver proceeds on any Settlement Date for the Shares
delivered by the Manager, the Dealer will pay the Manager interest based on the effective overnight
Federal Funds rate.
(g) In connection with this Agreement and the Offering, the Manager shall provide to the
Dealer such certificates and other documents as the Dealer may reasonably request no more than once
per calendar quarter relating to authorization, capacity, enforceability and compliance matters.
SECTION 2. Representations and Warranties by the Manager. The Manager represents,
warrants to and agrees with the Dealer, as of the date hereof and as of each Offering Date and
Settlement Date, that:
(a) A registration statement on Form N-2 (File Nos. 333-181550 and 811-04173) (the
“Registration Statement”) (i) has been prepared by the Fund in conformity with the requirements of
the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively
called the “Securities Act”), the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder (collectively called the “1940 Act”); (ii) has been filed with
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the Securities and Exchange Commission (the “Commission”) under the Securities Act and the 1940 Act;
and (iii) heretofore became, and is, effective; the registration statement sets forth the terms of
the offering, sale and plan of distribution of the Shares and contains additional information
concerning the Fund and its business; no stop order of the Commission preventing or suspending the
use of any Basic Prospectus (as defined below), the Prospectus Supplement (as defined below) or the
Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued,
and no proceedings for such purpose have been instituted or, to the Fund’s knowledge after due
inquiry, are contemplated by the Commission. Except where the context otherwise requires,
“Registration Statement,” as used herein, means, collectively, the various parts of the
registration statement, as amended at the time of effectiveness for purposes of Section 11 of the
Securities Act, as such section applies to the Manager, including (1) all documents filed as a part
thereof or incorporated or deemed to be incorporated by reference therein, and (2) any information
contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule
497(c) and/or Rule 497(h) under the Securities Act, to the extent such information is deemed to be
part of the registration statement at the Effective Time, “Basic Prospectus,” as used herein, means
the prospectus filed as part of the Registration Statement, including the related statement of
additional information, together with any amendments or supplements thereto as of the date of the
Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, including the related statement of additional information,
relating to the Shares, filed by the Fund with the Commission pursuant to Rule 497(c) and/or Rule
497(h) under the Securities Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Securities Act), in the form furnished by the Fund to the
Manager in connection with the offering of the Shares. Except where the context otherwise
requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic
Prospectus attached to or used with the Prospectus Supplement. Any reference herein to the
registration statement, the Registration Statement, any Basic Prospectus, the Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by
reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such
Incorporated Documents.
(b) The Fund is duly registered under the 1940 Act as a closed-end management investment
company. A notification of registration of the Fund as an investment company under the 1940 Act on
Form N-8A (the “1940 Act Notification”) has been prepared by the Fund in conformity with the 1940
Act and has been filed with the Commission and, at the time of filing thereof and at the time of
filing any amendment or supplement thereto, conformed in all material respects with all applicable
provisions of the 1940 Act. The Fund has not received any notice from the Commission pursuant to
Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration
Statement (or any amendment or supplement to either of them). No person is serving or acting as an
officer, director or investment adviser of the Fund except in accordance with the provisions of the
1940 Act and the Investment Advisers Act of 1940, as amended and the rules and regulations
thereunder.
(c) The Registration Statement, the 1940 Act Notification and the Prospectus as from time to
time amended or supplemented each complied when it became effective or was
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filed, complies as of
the date hereof and, as amended or supplemented, will comply, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required by the
Securities Act to be delivered in connection with any sale of Shares, in all material respects,
with the requirements of the Securities Act and the 1940 Act; the Registration Statement did not,
as of the Effective Time, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; the 1940 Act Notification did not, as of the Effective Time, contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; at no time during the period that begins on the earlier of the date of the Basic
Prospectus and the date such Basic Prospectus was filed with the Commission and ends at the later
of the time of purchase, the latest additional time of purchase, if any, and the end of the period
during which a prospectus is required by the Securities Act to be delivered in connection with any
sale of Shares did or will the Prospectus, as from time to time amended or supplemented, include an
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
(d) The financial statements incorporated by reference in the Registration Statement or the
Prospectus, together with the related notes and schedules, present fairly the financial position of
the Company as of the dates indicated and the results of operations, cash flows and changes in
stockholders’ equity of the Company for the periods specified and have been prepared in compliance
with the requirements of the Securities Act, the 1940 Act and the Exchange Act and in conformity
with U.S. generally accepted accounting principles applied on a consistent basis during the periods
involved; the other financial and statistical data contained or incorporated by reference in the
Registration Statement or the Prospectus are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and records of the Company; there are no
financial statements that are required to be included or incorporated by reference in the
Registration Statement, any Basic Prospectus or the Prospectus that are not included or
incorporated by reference as required; the Company does not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations), not described in
the Registration Statement (excluding the exhibits thereto).
(e) As of the date of this Agreement, the Fund has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the Basic Prospectus and
the Prospectus entitled “The Fund” and “Description of Capital Structure,” and, with respect to any
issuance and sale under this Agreement, the Fund shall have as of the date of the most recent
amendment or supplement to the Registration Statement or Prospectus, an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement and the Prospectus
entitled “The Fund” and “Description of Capital Structure” (and any similar sections or
information, if any, contained in the Final Term Sheet, if any) (subject, in each case, to the
issuance of Common Shares upon exercise of any stock options and warrants disclosed as outstanding
in the Registration Statement (excluding the exhibits thereto), each Basic Prospectus and the
Prospectus, and to the grant of options under any existing stock option plans described in the
Registration Statement (excluding the exhibits thereto), each Basic Prospectus and the Prospectus);
all of the issued and outstanding shares of capital stock,
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including the Common Shares, of the Fund
have been duly authorized and validly issued and are fully paid and non-assessable, have been
issued in compliance with all applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right; the Shares are duly
listed, and admitted and authorized for trading, subject to official notice of issuance, on the
Stock Exchange.
(f) The Fund has been duly organized and is validly existing as a business trust in good
standing under the laws of the Commonwealth of Massachusetts, with full power and authority to own,
lease and operate and conduct its business as described in the Registration Statement, the Basic
Prospectuses, the Prospectus and the Final Term Sheet, if any, and to issue, sell and deliver the
Shares as contemplated herein. The Fund is duly qualified to do business as a foreign entity and
is in good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, (i) have a material adverse
effect on the business, properties, financial condition, results of operations or prospects of the
Fund (a “Material Adverse Effect”), (ii) prevent or materially interfere with consummation of the
transactions contemplated hereby or (iii) result in the delisting of Common Shares from the Stock
Exchange (the occurrence of any such effect or any such prevention or interference or any such
result described in the foregoing clauses (i), (ii) and (iii) being herein referred to as a
“Material Adverse Effect”).
(g) The Shares have been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued, fully paid and non-assessable
and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and
similar rights; the Shares, when issued and delivered against payment therefor as provided herein,
will be free of any restriction upon the voting or transfer thereof pursuant to the Fund’s charter
or bylaws or any agreement or other instrument to which the Fund is a party. The capital stock of
the Fund, including the Shares, conforms in all material respects to each description thereof, if
any, contained or incorporated by reference in the Registration Statement, any Basic Prospectus,
the Prospectus or the Final Term Sheet, if any; and the certificates for the Shares, if any, are in
due and proper form. The Fund is in compliance with the rules of the Stock Exchange, including,
without limitation, the requirements for continued listing of the Common Shares on the Stock
Exchange and the Fund has not received any notice from the Stock Exchange regarding the delisting
of the Common Shares from the Stock Exchange.
(h) The Manager has full corporate power and authority to enter into this Agreement and the
transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered
by the Manager. This Agreement constitutes a valid and binding agreement of the Manager and is
enforceable against the Manager in accordance with its terms, except as the enforceability hereof
and thereof may be limited by applicable bankruptcy, insolvency, reorganization and similar laws
affecting creditors’ rights generally and moratorium laws in effect from time to time and by
equitable principles restricting the availability of equitable remedies.
(i) No approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or agency,
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or of or with
any self-regulatory organization or other non-governmental regulatory authority (including, without
limitation, the Stock Exchange), or approval of the stockholders of the Fund, is required in
connection with the issuance and sale of the Shares or the consummation by the Fund of the
transactions contemplated hereby, other than (i) registration of the Shares under the Securities
Act and the 1940 Act, which has been effected, (ii) any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are being offered by
the Manager or (iii) under the Conduct Rules of the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
SECTION 3. Additional Covenants.
(a) The Dealer hereby confirms that it undertakes to comply with all applicable sections of
the regulations of the FINRA’s Rules of Fair Practice in connection with the Offerings.
(b) The Dealer agrees that it will not use, authorize use of, refer to, or participate in the
planning for use of any written communication (as defined in Rule 405 under the Securities Act)
concerning any Offering, other than any Preliminary Prospectus or the Prospectus.
(c) The Manager shall not be under any obligation to the Dealer except for obligations assumed
hereunder or in writing by the Manager in connection with any Offering. Nothing contained herein
or in any communication in writing from us shall constitute the Manager and the Dealer an
association or partners with one another. If such parties should be deemed to constitute a
partnership for Federal income tax purposes, then the Dealer elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and agrees
not to take any position inconsistent with that election. The Dealer authorizes the Manager, in
its discretion, to execute and file on its behalf such evidence of that election as may be required
by the Internal Revenue Service. In connection with any Offering, each party shall be liable for
its proportionate amount of any tax, claim, demand or liability that may be asserted against it
alone, based upon the claim that either of them constitute an association, an unincorporated
business or other entity, including, in each case, its proportionate amount of any expense incurred
in defending against any such tax, claim, demand or liability.
(d) The parties acknowledge and agree that all share related numbers contained in this
Agreement shall be adjusted to take into account any stock split effected with respect to the
Shares.
SECTION 4. Indemnification and Contribution.
(a) The Manager agrees to indemnify, defend and hold harmless the Dealer, its partners,
directors and officers, and any person who controls the Dealer within the meaning of Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (together with
and the rules and regulations thereunder, the “Exchange Act”), and the successors and assigns of
all of the foregoing persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which the Dealer or any such person may incur
under the Securities Act, the 1940 Act, the Exchange Act, the
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common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon (i) any breach of any
representation, warranty, covenant or agreement of the Manager contained in this Agreement, (ii)
any violation by the Manager of any law, rule or regulation (including any rule of any
self-regulatory organization), or (iii) any untrue statement of a material fact appearing in the
Registration Statement or Prospectus or omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except to the extent such
statements were provided in writing by the Dealer for inclusion in the Registration Statement or
Prospectus.
(b) The Dealer agrees to indemnify, defend and hold harmless the Manager, the Fund, their
partners, directors and officers, and any person who controls the Manager or the Fund within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors
and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation) which the Manager or any such person may
incur under the Securities Act, the 1940 Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any
breach of any representation, warranty, covenant or agreement of the Dealer contained in this
Agreement or (ii) any violation by the Dealer of any law, rule or regulation (including any rule of
any self-regulatory organization).
(c) An indemnified person under Section 4 of this Agreement (the “Indemnified Party”) shall
give written notice to the other party (the “Indemnifying Party”) of any loss, damage, expense,
liability or claim in respect of which the Indemnifying Party has a duty to indemnify such
Indemnified Party under Section 4(a) or (b) of this Agreement (a “Claim”), specifying in reasonable
detail the nature of the loss, damage, expense, liability or claim for which indemnification is
sought, except that any delay or failure so to notify such other party shall only relieve such
other party of its obligations hereunder to the extent, if at all, that you are actually prejudiced
by reason of such delay or failure.
(d) If a Claim results from any action, suit or proceeding brought or asserted against an
Indemnified Party, the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees
and expenses. The Indemnified Party shall have the right to employ separate counsel in such
action, suit or proceeding and participate in such defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Indemnified Party unless (i) the Indemnifying Party has
agreed in writing to pay such fees and expenses, (ii) the Indemnifying Party has failed within a
reasonable time to assume the defense and employ counsel or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such Indemnified Party
and Indemnifying Party and such Indemnified Party shall have been advised by its counsel that
representation of such Indemnified Party and Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential differing
interests between the Indemnifying Party and the Indemnified Party (in which case the Indemnifying
Party shall not have the right to assume the defense of such action, suit or proceeding on behalf
of such Indemnified Party). It is understood, however, that the Indemnifying Party shall, in
connection with any one action, suit or proceeding or separate but
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substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same general allegations
or circumstances be liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such Indemnified Parties not
having actual or potential differing interests with the Indemnifying Party or among themselves,
which firm shall be designated in writing by an authorized representative of such parties and that
all such fees and expenses shall be reimbursed promptly as they are incurred. The Indemnifying
Party shall not be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Indemnifying Party agrees to
indemnify and hold harmless any Indemnified Party from and against any loss, liability, damage or
expense by reason by such settlement or judgment.
(e) With respect to any Claim not within Paragraph (d) of Section 4 hereof, the Indemnifying
Party shall have 20 days from receipt of notice from the Indemnified Party of such Claim within
which to respond thereto. If the Indemnifying Party does not respond within such twenty-day
period, it shall be deemed to have accepted responsibility to make payment and shall have no
further right to contest the validity of such Claim. If the Indemnifying Party notifies the
Indemnified Party within such twenty-day period that it rejects such Claim in whole or in part, the
Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified
Party under applicable law.
(f) If the indemnification provided for in this Section 4 is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then each applicable Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a result of such losses,
damages, expenses, liabilities or claims in such proportion as is appropriate to reflect (i) the
relative benefits received by the Indemnified Party and its Affiliates (treated jointly as one
person for this purpose), on the one hand, and the Indemnifying Party and its Affiliates, on the
other hand, from the offering of the Shares; or (ii) if, but only if, the allocation provided for
in clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) but also the relative fault of the
Indemnified Party and its Affiliates (treated jointly as one person for this purpose), on the one
hand, and of the Indemnifying Party and its Affiliates, on the other, in connection with any
statements or omissions or other matters which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations. The relative
benefits received by the Indemnified Party and its Affiliates (treated jointly as one person for
this purpose), on the one hand, and the Indemnifying Party and its Affiliates, on the other, shall
be deemed to be in the same respective proportions as the total proceeds from the Offering received
by each such party and its Affiliates bear to the aggregate public offering price of the Shares.
The relative fault of the parties and their Affiliates shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by such party or its Affiliate, on one
hand, or by the other party or its Affiliate on the other hand and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or other fees or
expenses reasonably
8
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(g) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in subsection (f) above. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(h) The indemnity and contribution agreements contained in this Section 4 and the covenants,
warranties and representations of the parties contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of the Dealer, its partners,
directors or officers or any person (including each partner, officer or director of such person)
who controls the Dealer within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, or by or on behalf of the Manager, its directors or officers or any person who
controls the Manager within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the issuance and delivery of
the Shares.
SECTION 5. Representations and Agreements to Survive Delivery. The representations,
warranties, covenants and agreements of the parties contained in this Agreement, including, without
limitation, the indemnity agreement contained in Section 4 hereof, shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on behalf of any party or any
person controlling any party, or their directors or officers, (ii) acceptance of any Shares and
payment therefor and (iii) any termination of this Agreement.
SECTION 6. Termination.
(a) This Agreement shall continue in full force and effect until terminated by either party by
five days’ written notice to the other; provided, that if this Agreement has become effective with
respect to any Offering pursuant to this Agreement, this Agreement may not be terminated by you
with respect to such Offering.
(b) This Agreement shall remain in full force and effect unless terminated pursuant to Section
6(a) above or otherwise by mutual agreement of the parties; provided that any such termination by
mutual agreement shall in all cases be deemed to provide that Section 4 and Section 5 shall remain
in full force and effect.
(c) Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided that such termination shall not be effective until the close of business
on the date of receipt of such notice by the Manager or the Dealer, as the case may be. If such
termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall
settle in accordance with the provisions of Section 1 of this Agreement.
SECTION 7. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements under this Agreement shall be in writing and delivered by hand,
9
overnight
courier, mail or facsimile and, if to the Manager, it shall be sufficient in all respects if
delivered or sent to:
▇▇▇▇ ▇▇▇▇▇▇▇ Funds, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [__________]
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [__________]
with a copy for information purposes to:
▇▇▇▇ ▇▇▇▇▇▇▇ Funds, LLC]
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
and if to the Dealer, it shall be sufficient in all respects if delivered or sent to:
[Name]
[Address]
Attn: [__________]
[Address]
Attn: [__________]
Each party to this Agreement may change such address for notices by sending to the parties
to this Agreement written notice of a new address for such purpose.
SECTION 8. Parties at Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Manager, the Fund, and the Dealer and to the extent provided in
Section 4 of this Agreement the controlling persons, directors and officers referred to in such
section, and their respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation (including a
purchaser, as such purchaser, from the Manager) shall acquire or have any right under or by virtue
of this Agreement.
SECTION 9. No Fiduciary Relationship. The Manager hereby acknowledges that the Dealer
is acting solely as sub-sales agent in connection with the sale of the Shares and that the Dealer
is acting pursuant to a contractual relationship created solely by this Agreement entered into on
an arm’s-length basis, and in no event do the parties intend that the Dealer act or be responsible
as a fiduciary to the Manager or the Fund, their respective management, stockholders or creditors,
or any other person in connection with any activity that the Dealer may undertake or have
undertaken in furtherance of the sale of the Shares, either before or after the date hereof.
SECTION 10. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior and contemporaneous agreements and undertakings, both written and oral,
among the parties hereto with regard to the subject matter hereof.
SECTION 11. Counterparts; Heading. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement among the
10
parties.
The Section headings in this Agreement have been inserted as a matter of convenience of reference
and are not a part of this Agreement.
SECTION 12. Law; Construction. This Agreement and any claim, counterclaim or dispute
of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim
“), directly or indirectly, shall be governed by, and construed in accordance with, the internal
laws of the State of New York.
SECTION 13. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the State of New York
located in the City and County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication of such matters,
and each of the Manager and the Dealer consents to the jurisdiction of such courts and personal
service with respect thereto. Each of the Manager and the Dealer hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against the Manager or any indemnified
party. Each of the Manager and the Dealer (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) waives all right to trial by jury in
any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. Each of the Manager and the Dealer agrees that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Manager and the Dealer and may be enforced in any other courts to
the jurisdiction of which the Manager or the Dealer is or may be subject, by suit upon such
judgment.
SECTION 14. Successors and Assigns. This Agreement shall be binding upon the Manager,
the Fund and the Dealer and their successors and assigns and any successor or assign of any
substantial portion of the Manager’s, the Fund’s and the Dealer’s respective businesses and/or
assets.
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If the foregoing correctly sets forth the understanding between the Manager and the
Dealer, please so indicate in the space provided below for that purpose, whereupon this Agreement
and your acceptance shall constitute a binding agreement between the Manager and the Dealer.
Alternatively, the execution of this Agreement by the Manager and the acceptance by or on behalf of
the Dealer may be evidenced by an exchange of telegraphic or other written communications.
| Very truly yours, ▇▇▇▇ ▇▇▇▇▇▇▇ FUNDS, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
ACCEPTED as of the date first above written
[__________]
(as sub-placement agent)
(as sub-placement agent)
By: |
||||
Name:
|
||||
Title: |
||||
By: |
||||
Name:
|
||||
Title: |
ADDENDUM
TO
SUB-PLACEMENT AGENT AGREEMENT
BETWEEN
▇▇▇▇ ▇▇▇▇▇▇▇ FUNDS, LLC
AND
[__________]
TO
SUB-PLACEMENT AGENT AGREEMENT
BETWEEN
▇▇▇▇ ▇▇▇▇▇▇▇ FUNDS, LLC
AND
[__________]
Compensation payable to the Dealer for acting as a sub-placement agent on behalf of the
Manager with respect to a specified sale of Shares pursuant to this Agreement shall be determined
by multiplying the Gross Sales Proceeds by the Applicable Selling Agent Commission as set forth in
the table below:
| Applicable | ||||
| Gross Sales | Selling Agent | |||
| Commission | Manager Retention | Commission | ||
| [____]% | [____]% | [____]% |
Where:
“Gross Sales Proceeds” with respect to each sale of Shares shall be the Gross Sales Price
multiplied by the number of Shares sold;
“Gross Sales Price” with respect to each sale of Shares sold pursuant to this Agreement shall
be the gross sales price per share of such Shares.