PLACEMENT AGENT AGREEMENT
THIS AGREEMENT is made as of the 31st day of October, 2002 by and between
ACP Funds Trust (the "Trust"), a Delaware business trust, and Xxxxxx Investment
Distributors, Inc. (the "Placement Agent"), a New York corporation.
WHEREAS, the Trust is registered as a non-diversified, closed-end
management investment company under the Investment Company Act of 1940, as
amended ("Investment Company Act") and its securities are exempt from
registration pursuant to Regulation D under the Securities Act of 1933, as
amended (the "Securities Act");
WHEREAS, the Placement Agent is registered as a broker-dealer with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act of
1934, as amended; and
WHEREAS, the Trust desires to retain the Placement Agent to provide
placement agency services with respect to the portfolios set forth in Schedule A
attached hereto and such other portfolios as the Trust and the Placement Agent
may agree upon (the "Funds"), and the Placement Agent is willing to render such
services.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Fund and Placement Agent hereby agree as follows:
ARTICLE 1. SALE OF SHARES. The Trust grants to the Placement Agent the
exclusive right to sell shares ("Shares") of the Funds at the net asset value
per Share, plus any applicable sales charges in accordance with the current
private placement memorandum ("PPM"), as agent and on behalf of the Trust,
during the term of this Agreement and subject to the rules and regulations of
the SEC and the laws governing the sale of securities in the various states (the
"Blue Sky Laws").
ARTICLE 2. SOLICITATION OF SALES. In consideration of these rights granted
to the Placement Agent, the Placement Agent agrees to use all reasonable
efforts, consistent with its other business, in connection with the distribution
of Shares of the Funds; provided, however, that the Placement Agent shall not be
prevented from entering into like arrangements with other issuers. The
provisions of this paragraph do not obligate the Placement Agent to register as
a broker or dealer under the Blue Sky Laws of any jurisdiction or to maintain
its registration in any jurisdiction in which it is now registered, unless it
engages in activities contemplated by this Agreement in such jurisdiction.
Nothing herein shall obligate the Placement Agent to sell any particular number
of Shares.
ARTICLE 3. COMPENSATION. In consideration for its provision of services to
investors relating to their purchase or continued holding of Shares, the Trust
will pay distribution and shareholder service fees to the Placement Agent at the
annual rate specified in Schedule B, which is attached hereto and made a part of
this Agreement.
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ARTICLE 4. AUTHORIZED REPRESENTATIONS. The Placement Agent is not
authorized by the Trust to give any information or to make any representations
other than those contained in the current registration statement of the Trust
filed with the SEC or contained in shareholder reports or other material that
may be prepared by or on behalf of the Trust or a Fund, including a Fund's PPM,
for the Placement Agent's use. The Placement Agent may prepare and distribute
sales literature and other materials as it may deem appropriate, provided that
such literature and materials have been prepared in accordance with applicable
rules and regulations.
ARTICLE 5. INDEMNIFICATION OF PLACEMENT AGENT. The Trust agrees to
indemnify and hold harmless the Placement Agent and each of its directors and
officers and each person, if any, who controls the Placement Agent within the
meaning of Section 15 of the Securities 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 Shares, based upon the ground that the registration
statement, PPM, shareholder reports or other information filed or made public by
the Trust (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
Trust does not agree to indemnify the Placement Agent or hold it harmless to the
extent that the statement or omission was made in reliance upon, and in
conformity with, information furnished to the Trust by or on behalf of the
Placement Agent.
In no case (i) is the indemnity of the Trust to be deemed to protect the
Placement Agent against any liability to the Trust or its shareholders to which
the Placement Agent 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 Trust to be liable to the Placement Agent
under the indemnity agreement contained in this paragraph with respect to any
claim made against the Placement Agent or any person indemnified unless the
Placement Agent or other person shall have notified the Trust in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon the Placement Agent or such other person (or after the Placement
Agent or the person shall have received notice of service on any designated
agent). However, failure to notify the Trust of any claim shall not relieve the
Trust from any liability which it may have to the Placement Agent or any person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph.
The Trust shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the Trust elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and satisfactory to the indemnified defendants in the suit
whose approval shall not be unreasonably withheld. In
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the event that the Trust 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 Trust 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 Trust agrees to notify the Placement Agent promptly of the
commencement of any litigation or proceedings against it or any of its officers
or Trustees in connection with the issuance or sale of any of its Shares.
ARTICLE 6. INDEMNIFICATION OF TRUST. The Placement Agent covenants and
agrees that it will indemnify and hold harmless the Trust and each of its
Trustees and officers and each person, if any, who controls the Trust within the
meaning of Section 15 of the Securities 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 Securities Act or
any other statute or common law and arising by reason of any person acquiring
any Shares, and alleging a wrongful act of the Placement Agent or any of its
employees or alleging that the registration statement, PPM, shareholder reports
or other information filed or made public by the Trust (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 Trust by or on behalf of the
Placement Agent.
In no case (i) is the indemnity of the Placement Agent in favor of the
Trust or any other person indemnified to be deemed to protect the Trust or any
other person against any liability to which the Trust 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
Placement Agent to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against the Trust or any person
indemnified unless the Trust or person, as the case may be, shall have notified
the Placement Agent in writing of the claim within a reasonable time after the
summons or other first written notification giving information of the nature of
the claim shall have been served upon the Trust or upon any person (or after the
Trust or such person shall have received notice of service on any designated
agent). However, failure to notify the Placement Agent of any claim shall not
relieve the Placement Agent from any liability which it may have to the Trust or
any person against whom the action is brought otherwise than on account of its
indemnity agreement contained in this paragraph.
The Placement Agent 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 Placement Agent elects to assume the defense, the
defense shall be conducted by counsel chosen by the Placement Agent and
satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event that the Placement
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Agent 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 Placement Agent 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 Placement Agent agrees to notify the Trust promptly of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of any of the Trust's Shares.
ARTICLE 7. EFFECTIVE DATE AND TERMINATION. This Agreement shall be
effective upon its execution, and unless terminated as provided, shall continue
in force for two years from the effective date and thereafter from year to year,
provided that such annual continuance is approved by (i) either the vote of a
majority of the Trustees of the Trust, or the vote of a majority of the
outstanding voting securities of the Trust, and (ii) the vote of a majority of
those Trustees of the Trust who are not parties to this Agreement or interested
persons of any such party ("Independent Trustees"), cast in person at a meeting
called for the purpose of voting on the approval. This Agreement shall
automatically terminate in the event of its assignment. As used in this
paragraph the terms "vote of a majority of the outstanding voting securities",
"assignment" and "interested person" shall have the respective meanings
specified in the Investment Company Act. In addition, this Agreement may at any
time be terminated without penalty by the Placement Agent, by a vote of a
majority of Independent Trustees or by vote of a majority of the outstanding
voting securities of the Trust upon not less than 30 days prior written notice
to the other party.
ARTICLE 8. 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 Trust, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000
ATTENTION: President, and if to the Placement Agent, 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxxxx 00000 ATTENTION: President.
ARTICLE 9. LIMITATION OF LIABILITY. A copy of the Certificate of Trust of
the Trust is on file with the Secretary of State of the State of Delaware, and
notice is hereby given that this Agreement is executed on behalf of the Trustees
of the Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders of
the Trust individually but binding only upon the assets and property of the
Trust.
ARTICLE 10. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware and the applicable provisions of the
Investment Company Act. To the extent that the applicable laws of the State of
Delaware, or any of the provisions herein, conflict with the applicable
provisions of the Investment Company Act, the latter shall control.
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ARTICLE 11. 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 Trust and Placement Agent have each duly executed this
Agreement, as of the day and year above written.
ACP FUNDS TRUST
By: /s/ XXXXX X. XXXXX
----------------------------
Attest: /s/ XXXXX X. XXXXX
----------------------------
XXXXXX INVESTMENT DISTRIBUTORS, INC.
By: /s/ XXXX X. XXXXX
----------------------------
Attest: /s/ XXXXX X. XXXXX
----------------------------
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SCHEDULE A DATED OCTOBER 31, 2002 AS REVISED MARCH 7, 2003
TO THE
PLACEMENT AGENT AGREEMENT
DATED OCTOBER 31, 2002
BETWEEN
ACP FUNDS TRUST
AND
XXXXXX INVESTMENT DISTRIBUTORS, INC.
FUNDS
ACP Adviser Series Continuum Return Fund
ACP Advantage Continuum Return Fund
ACP Adviser Series Strategic Opportunities Fund
ACP Advantage Strategic Opportunities Fund
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SCHEDULE B DATED OCTOBER 31, 2002 AS REVISED MARCH 7, 2003
TO THE
PLACEMENT AGENT AGREEMENT
DATED OCTOBER 31, 2002
BETWEEN
ACP FUNDS TRUST
AND
XXXXXX INVESTMENT DISTRIBUTORS, INC.
Pursuant to Section 3, the Trust shall pay the Placement Agent compensation at
an annual rate as follows:
FUND FEE (IN BASIS POINTS)
ACP Adviser Series Continuum Return Fund Distribution (12b-1) Fee: 0.25%
Shareholder Service Fee: 0.25%
ACP Advantage Continuum Return Fund Distribution (12b-1) Fee: 0.75%
Shareholder Service Fee: 0.25%
ACP Adviser Series Strategic
Opportunities Fund Distribution (12b-1) Fee: 0.25%
Shareholder Service Fee: 0.25%
ACP Advantage Strategic Opportunities Fund Distribution (12b-1) Fee: 0.75%
Shareholder Service Fee: 0.25%
CALCULATION OF FEES
Distribution and Shareholder Service fees are based on a percentage of the
Funds' average daily net assets attributable to Shares of each listed Fund.
