EXHIBIT h
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ____ day of __________ between The
Oxbow Fund, LLC (the "Fund"), a New Jersey limited liability company, and C.J.M.
Planning Corp., a New Jersey corporation ("CJM" or the "Distributor").
WHEREAS, the Fund has elected to be regulated as a business development
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its units are registered with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act") and the
Securities Exchange Act of 1934, as amended ("1934 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the 1934 Act.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Fund and Distributor hereby agree as follows:
ARTICLE 1. Sale of Units. The Fund grants to the Distributor the
exclusive right to sell Units (the "Units") of the Fund at the price set forth
in the Prospectus (which shall not be less than the Fund's net asset value per
Unit) as agent and on behalf of the Fund, in accordance with the terms of this
Agreement and subject to the registration requirements of the 1933 Act and the
1934 Act, the rules and regulations of the SEC and the laws governing the sale
of securities in the various states ("Blue Sky Laws").
ARTICLE 2. Solicitation of Sales. In consideration of these rights
granted to the Distributor, the Distributor agrees to use its best efforts in
connection with the distribution of Units of the Fund; provided, however, that
the Distributor shall not be prevented from entering
into like arrangements with other issuers. The provisions of this paragraph do
not obligate the Distributor to register as a broker or dealer under the Blue
Sky Laws of any jurisdiction if it determines it would be uneconomical for it to
do so or to maintain its registration in any jurisdiction in which it is now
registered nor obligate the Distributor to sell any particular number of Units.
The Distributor may contract with other dealers that are members of the NASD who
will use their best efforts to offer and sell the Units.
ARTICLE 3. Authorized Representatives. The Distributor is not
authorized by the Fund to give any information or to make any representations
other than those contained in the current registration statement and prospectus
of the Fund filed with the SEC or contained in shareholder reports or other
material that may be prepared by or on behalf of the Fund for the Distributor's
use. The Distributor may prepare and distribute sales literature and other
material as it may deem appropriate, provided that such literature and materials
have been approved by the Fund prior to their use.
ARTICLE 4. Registration of Units. The Fund agrees that it will take all
action necessary to register Units under the federal and state securities laws
so that there will be available for sale the number of Units the Distributor may
reasonably be expected to sell and to pay all fees associated with said
registration. The Fund shall make available its currently effective prospectus
for the entire offering period as described therein. The Fund shall make
available to the Distributor copies of all information, financial statements and
other papers which the Distributor may reasonably request for use in connection
with the distribution of Units of the Fund.
ARTICLE 5. Compensation. As compensation for providing the services
under this Agreement the Fund shall pay to the Distributor a sales charge equal
to $7 per Unit sold as
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described in the Fund's current prospectus, as amended from time to time.
ARTICLE 6. Indemnification of Distributor. The Fund agrees to indemnify
and hold harmless the Distributor and each of its directors and officers and
each person, if any, who controls the Distributor within the meaning of Section
15 of the 1933 Act against any loss, liability, claim, damages or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages, or expense and reasonable counsel fees and
disbursements incurred in connection therewith), arising by reason of any person
acquiring any Units, based on the ground that the registration statement,
prospectus, shareholder reports or other information filed or mad public by the
Fund (as from time to time amended) included an untrue statement of a material
fact or omitted to state a material fact required to be stated or necessary in
order to make the statements made not misleading. However, the Fund does not
agree to indemnify the Distributor or hold it harmless to the extent that the
statements or omission was made in reliance upon, and in conformity with,
information furnished to the Fund by or on behalf of the Distributor.
In no cases (i) is the indemnity of the Fund to be deemed to protect
the Distributor against any liability to the Fund or its shareholders to which
the Distributor or such person otherwise would be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is the Fund to be liable to the Distributor under the
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor or any person indemnified unless the Distributor or
other person shall have notified the Fund in writing of the claim within a
reasonable time after the summons or other first written notification giving
information of the nature of the claim shall have been served upon the
Distributor or such other
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person (or after the Distributor or the person shall have received notice of
service on any designated agent). However, failure to notify the Fund of any
claim shall not relieve the Fund from any liability which is may have to the
Distributor or any person against whom such action is brought otherwise than on
account of its indemnity agreement contained in this paragraph.
The Fund shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Fund elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Fund and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In the event that the Fund
elects to assume the defense of any suit and retain counsel, the indemnified
defendants shall bear the fees and expenses of any additional counsel retained
by them. If the Fund does not elect to assume the defense of a suit, it will
reimburse the indemnified defendants for the reasonable fees and expenses of any
counsel retained by the indemnified defendants.
The Fund agrees to notify the Distributor promptly of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with the issuance or sale of any of its Units.
ARTICLE 7. Indemnification of Fund. The Distributor covenants and
agrees that it will indemnify and hold harmless the Fund and each of its
directors and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith) based upon the 1933 Act, 1934 Act, 1940 Act or any
other statute or common law and arising by reason of any person acquiring any
Shares, and alleging a wrongful
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act of the Distributor of any of its employees or alleging that the registration
statement, prospectus, Shareholder reports or other information filed or made
public by the Fund (as from time to time amended) included an untrue statement
of a material fact or omitted to state a material fact required to be stated or
necessary in order to make the statements not misleading, insofar as the
statement or omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the Distributor.
In no case (i) is the indemnity of the Distributor in favor of the Fund
or any other person indemnified to be deemed to protect the Fund or any other
person against any liability to which the Fund or such other person would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Distributor to be liable under the indemnity agreement contained in this
paragraph with respect to any claim made against the Fund or any person
indemnified unless the Fund or person, as the case may be, shall have notified
the Distributor in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Fund or upon any person (or after the
Fund or such person shall have received notice of service on any designated
agent). However, failure to notify the Distributor of any claim shall not
relieve the Distributor from any liability which it may have to the Fund or any
person against whom the action is brought otherwise than on account of its
indemnify agreement contained in this paragraph.
The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor
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and satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that the Distributor elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If the
Distributor does not elect to assume the defense of any suit, it will reimburse
the indemnified defendants in the suit for the reasonable fees and expenses of
any counsel retained by them.
The Distributor agrees to notify the Fund promptly of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any of the Fund's Shares.
ARTICLE 8. Effective Date. This Agreement shall be effective upon its
execution, and unless terminated as provided, shall continue in force for two
year(s) from the effective date. This Agreement shall automatically terminate in
the event of its assignment. As used in this paragraph the term "assignment"
shall have the meaning specified in the 1940 Act. In addition, this Agreement
may at any time be terminated without penalty by Distributor, by a vote of a
majority of Independent Directors of the Fund or by vote of a majority of the
outstanding voting securities of the Fund upon not less than sixty days prior
written notice to the other party.
ARTICLE 9. Notices. Any notice required or permitted to be given by
either party to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving notice to the
other party at the last address furnished by the other party to the party giving
notice: if to the Fund or the Distributor notices shall be sent to ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE 10. Limitation of Liability. A copy of the Operating Agreement
of the Fund has been provided to the Distributor and notice is hereby given that
this Agreement is executed
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on behalf of the directors of the Fund as directors and not individually and
that the obligations of this instrument are not binding upon any of the
directors, officers or unitholders of the Fund individually but binding only
upon the assets and property of the Fund.
ARTICLE 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New Jersey and the applicable
provisions of the 1940 Act. To the extent that the applicable laws of the State
of New Jersey, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control.
ARTICLE 12. Multiple Originals. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS, the Fund and Distributor have each duly executed this
Agreement, as of the day and year above written.
THE OXBOW FUND
By: C.J.M. Asset Management, LLC
Investment Manger
By:
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Name:
Title:
C.J.M. PLANNING CORP.
By:
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Name:
Title:
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