ADVANTAGE ADVISERS MULTI-SECTOR FUND I
Shares of Beneficial Interest
DISTRIBUTION AGREEMENT
As of March 21, 2002
CIBC World Markets Corp.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned, Advantage Advisers Multi-Sector Fund I, a
Delaware business trust (the "Fund"), and Advantage Advisers, L.L.C., a
Delaware limited liability company (the "Investment Adviser"), address you
as distributor ("Distributor") as agent for the offer and sale from time to
time of shares of beneficial interest, $.001 par value per share (the
"Shares"), of the Fund to the public.
The Fund and the Investment Adviser wish to confirm as follows
their agreements with you in connection with the distribution of the
Shares.
The Fund has entered into an Investment Advisory Agreement with
the Investment Adviser dated March 21, 2002 ("Advisory Agreement"). The
Fund has entered into a Custodian Services Agreement with PFPC Trust
Company dated March 21, 2002 ("Custody Agreement") and a Transfer Agency
Services Agreement Agreement ("Transfer Agency Agreement") and an
Administration and Accounting Agreement ("Administration Agreement") with
PFPC Inc., each dated March 21, 2002. The Fund and the Investment Adviser
have each entered into Sub-Investment Advisory Agreements with each of
Alkeon Capital Management, LLC, Kilkenny Capital Management, L.L.C. and KBW
Asset Management, Inc., each of which is dated March 21, 2002 (such
agreements are herein referred to collectively as the "Sub-Advisory
Agreements"). Collectively, the Advisory Agreement, the Custody Agreement,
the Transfer Agency Agreement, the Administration Agreement and each
Sub-Advisory Agreement are referred to as the "Fund Agreements." This
Distribution Agreement is herein referred to as the "Agreement."
1. Registration Statement and Prospectus. The Fund has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended
(the "1933 Act"), the Investment Company Act of 1940, as amended (the "1940
Act"), and the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Rules and Regulations") and the 1940 Act (the "1940 Act
Rules and Regulations" and together with the 1933 Act Rules and
Regulations, the "Rules and Regulations") a registration statement on Form
N-2 (File Nos. 333-67926 and 811-10473 under the 1933 Act and the 1940 Act,
respectively) and one or more amendments thereto which was declared
effective on February 4, 2002 (the "registration statement"), including a
prospectus and statement of additional information relating to the offering
of up to 16,000,000 Shares in connection with the initial offering of
Shares (the "Initial Offering"), and a notification of registration of the
Fund as an investment company under the 1940 Act on Form N-8A (the "1940
Act Notification"), and may pursuant to the Rules and Regulations prepare
and file a post-effective amendment to the registration statement relating
to additional Shares to be offered in the Initial Offering pursuant to Rule
462(b) of the 1933 Act Rules and Regulations (a "Rule 462 amendment") and
from time to time intends pursuant to the Rules and Regulations to prepare
and file one or more post-effective amendments to the registration
statement relating to additional Shares to be offered in a continuous
offering (the "Continuous Offering") pursuant to Rule 415(a)(xi) of the
1933 Act Rules and Regulations (a "Rule 415 amendment"). The term
"Registration Statement" as used in this Agreement means the Fund's
currently effective registration statement (including without limitation
after the filing of a Rule 462 amendment or any Rule 415 amendment declared
effective by the Commission), including the Prospectus. The term
"Prospectus" as used in this Agreement means the prospectus and statement
of additional information in the forms included in the Fund's Registration
Statement (and any supplements or amendments thereto). The terms
"Registration Statement" and "Prospectus" shall also include any financial
statements and schedules and notes thereto and other information included
or incorporated by reference therein.
2. Appointment as Distributor.
(a) The Fund hereby appoints the Distributor to act as its
principal distributor of Shares in jurisdictions wherein Shares may legally
be offered for sale.
(b) The Distributor accepts such appointment as principal
distributor and agrees to render such services and to assume the
obligations herein set forth for the compensation herein provided. The
Distributor shall for all purposes herein provided unless otherwise
specified be deemed to be an independent contractor and, unless expressly
provided herein or otherwise authorized, shall have no authority to act for
or represent the Fund in any way. The Distributor, by separate agreement
with the Fund, may also serve the Fund in other capacities. The services of
the Distributor to the Fund under this Agreement are not to be deemed
exclusive, and the Distributor shall be free to render similar services or
other services to others so long as its services hereunder are not impaired
thereby. The Distributor represents that it is registered with the
Commission as a broker or dealer under Section 15 of the Securities
Exchange Act of 1934, as amended, and a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD").
(c) In carrying out its duties and responsibilities hereunder, the
Distributor may, pursuant to separate written contracts, delegate its
responsibilities as distributor to various brokers, dealers or other
financial intermediaries selected by it as selling agents (each, a "Selling
Agent") to provide advertising, promotion and other distribution services
contemplated hereunder directly to or for existing and potential
shareholders who may be clients of such Selling Agents; provided that the
Distributor will not delegate its duties to any Selling Agent that is not
authorized to distribute Shares under applicable law. Such Selling Agents
shall at all times be deemed to be independent contractors retained by the
Distributor and not the Fund.
(d) The Distributor shall use its best efforts with reasonable
promptness to sell such authorized Shares of the Fund remaining unissued as
from time to time shall be effectively registered under the 1933 Act and
offered by the Fund, at prices determined as hereinafter provided and on
terms hereinafter set forth, all subject to applicable federal and state
laws and regulations and to the Fund's Registration Statement and the
amended and restated agreement and declaration of trust ("Agreement and
Declaration of Trust") and by-laws ("By-Laws") of the Fund; provided,
however, that the Distributor may in its discretion refuse to accept orders
for Shares from any particular prospective investor. Without limiting the
foregoing, the Distributor agrees to sell Shares only to investors who are
"Qualified Clients" as that term is defined in the Prospectus, and to
impose this requirement as a condition of the sales activity of any Selling
Agent with whom the Distributor enters into a master selling and servicing
agreement or other selling group arrangement with respect to the Shares.
(e) The Distributor shall sell Shares only to investors or through
qualified Selling Agents in such manner not inconsistent with the
provisions hereof, the Fund's Registration Statement and any master selling
and servicing agreement as the Distributor may determine from time to time.
Whenever the Distributor sells Shares directly to investors, the
Distributor will provide the shareholder services as set forth in the
Registration Statement and as contemplated by the terms of any master
selling and servicing agreement or other selling group arrangement with
respect to the Shares. No Selling Agent or other person shall be appointed
or authorized to act as agent of the Fund without the prior consent of the
Fund.
3. Delivery of Shares and Payments Therefor.
(a) The Distributor and Selling Agents shall order Shares from the
Fund only to the extent that it or they shall have received purchase orders
therefor. The Distributor will not make, or authorize Selling Agents or
others to make: (a) any short sales of Shares; or (b) any sales of such
Shares to any Board member or officer of the Fund or to any officer or
Board member of the Distributor or of any corporation or association
furnishing investment advisory, managerial or supervisory services to the
Fund, or to any corporation or association, unless such sales are made in
accordance with the Fund's Registration Statement relating to the sale of
such Shares. In selling Shares, the Distributor will in all respects
conform to the requirements of all state and federal laws and the Conduct
Rules of the NASD relating to such sales, and the Distributor will observe
and be bound by all the provisions of the Fund's Registration Statement and
the Agreement and Declaration of Trust, By-Laws or other organizational
documents of the Fund (and of any fundamental policies adopted by the Fund
pursuant to the 1940 Act as to which the Distributor has been given notice
by the Fund) which at the time in any way require, limit, restrict,
prohibit or otherwise regulate any action on the part of the Distributor
hereunder.
(b) Delivery to investors in the Fund of, and payment to the Fund
for, Shares shall be made by means of the National Securities Clearing
Corporation ("NSCC") Fund Settlement, Entry and Registration Verification
System (the "Fund/SERV System") (or by another mutually agreeable means)
and shall be effected by the settlement of trade details that are
transmitted to the Fund/SERV System by the Fund (or its agents) on the one
hand and the Distributor or any Selling Agent on the other in accordance
with the procedures of the Fund/SERV System on the closing date for (i) the
Initial Offering (the "Initial Closing Date") or (ii) with respect to the
closing of additional sales of Shares during the Continuous Offering, on
the closing date determined by the Fund with respect to each such
additional closing (each such date, an "Additional Closing Date," each of
which may, together with the Initial Closing Date, be referred to as a
"Closing Date"). The Initial Closing Date shall be 9:00 a.m. New York City
time on March 22, 2002 at the office of CIBC World Markets Corp., 000 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or another mutually agreeable
facility. The Initial Closing Date may be varied by agreement between you
and the Fund.
(c) The Shares shall be registered in such names and in such
denominations as the Distributor or any Selling Agent shall request in
accordance with the procedures of the Fund/SERV System.
(d) Shares offered for sale or sold by the Distributor shall be so
offered or sold at a price per Share determined in accordance with the
Registration Statement. The price the Fund shall receive for all Shares
purchased from it shall be the net asset value used in determining the
public offering price applicable to the sale of such Shares, except with
respect to Shares sold during the Initial Offering, which shall be offered
and sold at the price set forth in the Prospectus relating to the Initial
Offering. Any excess of the sales price over the public offering price of
the Shares sold by the Distributor shall be retained by the Distributor as
a commission for its services hereunder. The Distributor may compensate
Selling Agents for sales of Shares at the commission levels provided in a
Written Communication from time to time. The Distributor shall also receive
any services fees payable by the Fund, as provided in the Fund's service
plan or by the Investment Adviser with respect to Shares as provided in the
Registration Statement (or any supplement or amendment thereto).
4. Agreements of the Fund and the Investment Adviser. The Fund and
the Investment Adviser agree with the Distributor as follows:
(a) [Reserved.]
(b) The Fund will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request made by the
Commission for amendment of or a supplement to the Fund's Registration
Statement or the Prospectus or for additional information, (ii) of the
issuance by the Commission, the NASD, any state securities commission, any
national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
official of any order suspending the effectiveness of the Fund's
Registration Statement, prohibiting or suspending the use of the Prospectus
or any sales material (as hereinafter defined), of any notice pursuant to
Section 8(e) of the 1940 Act, of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation or
contemplated initiation of any proceeding for any such purposes, (iii) of
receipt by the Fund, any affiliate of the Fund or any representative or
attorney of the Fund of any other material communication from the
Commission and (iv) of any material, adverse change in the condition
(financial or other), general affairs, business, prospects, properties, net
assets or results of operations of the Fund or of the happening of any
event which makes any statement of a material fact made in the Fund's
Registration Statement, the Prospectus or any sales material (or any
amendment or supplement to any of the foregoing) untrue or which requires
the making of any additions to or changes in the Fund's Registration
Statement, the Prospectus or any sales material in order to state a
material fact required by the 1933 Act, the 1940 Act or the Rules and
Regulations to be stated therein or necessary in order to make the
statements therein (in the case of a Prospectus or any sales material, in
light of the circumstances under which they were made) not misleading or of
the necessity to amend or supplement the Fund's Registration Statement, the
Prospectus or any sales material to comply with the 1933 Act, the 1940 Act,
the Rules and Regulations or any other law or order of any court or
regulatory body. If at any time the Commission shall issue any order
suspending the effectiveness of the Fund's Registration Statement,
prohibiting or suspending the use of the Prospectus or any sales material
(or any amendment or supplement to any of the foregoing) or suspending the
qualification of the Shares for offering or sale in any jurisdiction, the
Fund and the Investment Adviser, upon your request, will use their best
efforts to obtain the withdrawal of such order at the earliest possible
time.
(c) The Fund will furnish to you, without charge, a signed copy of
the registration statement and the 1940 Act Notification as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits thereto and will also furnish to you,
without charge, such number of conformed copies of the registration
statement as originally filed and of each amendment thereto, with or
without exhibits, as you may reasonably request.
(d) Prior to the Initial Closing Date, the Fund will not (i) file
any amendment to the Registration Statement or make any amendment or
supplement to the Prospectus or any sales material (or any amendment or
supplement to any of the foregoing) of which you shall not previously have
been advised or to which you shall reasonably object within a reasonable
time after being so advised or (ii) so long as a Prospectus is required to
be delivered in connection with sales by any broker or dealer, file any
information, documents or reports pursuant to the 1933 Act, the 1940 Act or
the Securities Exchange Act of 1934, as amended (the "1934 Act"), without
delivering a copy of such information, documents or reports to you prior to
or concurrently with such filing.
(e) The Fund will deliver to you and any Selling Agent, without
charge, in such quantities as you may reasonably request, copies of the
Fund's Prospectus. The Fund consents to the use, in accordance with the
provisions of the 1933 Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by you and by Selling Agents,
each Prospectus so furnished by the Fund.
(f) If, prior to the termination of this Agreement, any event
shall occur that in the judgment of the Fund or you is required to be set
forth in the Registration Statement or the Prospectus or should be set
forth therein in order to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading or if it is necessary to supplement or amend the Registration
Statement or the Prospectus to comply with the 1933 Act, the 1940 Act, the
Rules and Regulations or any other law, rule or regulation, the Fund will
forthwith notify you of such event, and, if requested by you, prepare and,
subject to the provisions of paragraph (d) above, promptly file with the
Commission an appropriate amendment or supplement thereto and will
expeditiously furnish to you and any Selling Agent, without charge, such
number of copies thereof as they may reasonably request. In the event that
the Registration Statement or the Prospectus is to be amended or
supplemented, the Fund, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) Subject to and in compliance with the description contained in
the Prospectus and the terms of any selling and servicing agreement that
provides, among other things, for any Selling Agent to provide ongoing
shareholder services to customers of such Selling Agent that hold Shares,
the Fund and the Investment Adviser, respectively, will each pay the
ongoing servicing fees and any other fees described in the Prospectus (in
accordance with the descriptions thereof in the Prospectus).
(h) The Fund will cooperate with you in connection with the
registration or qualification of Shares for offering and sale by you and
the several Selling Agents under the securities or Blue Sky laws of such
jurisdictions within the United States as you (or they) may designate and
will file such consents to service of process or other documents necessary
or appropriate in order to effect such registration or qualification;
provided that in no event shall the Fund be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(i) The Fund will make generally available to its security holders
an earnings statement, which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act
Rules and Regulations.
(j) The Fund will comply with the undertaking set forth in the
last sentence of Item 33 of Part C of the Registration Statement.
(k) Until the fifth anniversary of the termination of this
Agreement, the Fund will furnish or will have furnished to you (i) as soon
as available, a copy of each report of the Fund mailed to shareholders or
filed with the Commission and (ii) from time to time such other information
concerning the Fund as you may reasonably request.
(l) [Reserved.]
(m) The Fund will direct the investment of the net proceeds from
the sale of Shares (i) in accordance with the description set forth in the
Prospectus and (ii) in such a manner so as to comply with the investment
objectives, policies and restrictions of the Fund as described in the
Prospectus (as amended or supplemented).
(n) The Fund will file the requisite copies of the Prospectus with
the Commission in a timely fashion pursuant to the 1933 Act Rules and
Regulations.
(o) Except as provided in this Agreement or pursuant to any
dividend reinvestment plan of the Fund, the Fund will not sell, contract to
sell or otherwise dispose of, any Shares or any securities convertible into
or exercisable or exchangeable for Shares or grant any options or warrants
to purchase Shares, for a period of 120 days after the Initial Closing
Date, without the prior written consent of the Distributor.
(p) Except as stated in this Agreement and in the Prospectus,
neither the Fund nor the Investment Adviser has taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Shares.
(q) The Fund will direct the investment of the proceeds of the
sale of Shares so as to comply with the requirements of Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code"), to qualify as a
regulated investment company under the Code.
5. Representations and Warranties of the Fund and the Investment
Adviser. The Fund and the Investment Adviser, jointly and severally,
represent and warrant to you that:
(a) The Registration Statement, the Prospectus and the 1940 Act
Notification comply in all material respects with the provisions of the
1933 Act, the 1940 Act and the Rules and Regulations and do not or will not
at any 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 the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; except that this
representation and warranty does not apply to statements in or omissions
from the Registration Statement and the Prospectus made in reliance upon
and in conformity with information relating to you or any Selling Agent
furnished to the Fund in writing by or on behalf of you or such Selling
Agent through you expressly for use therein.
(b) All the currently outstanding Shares have been duly authorized
and validly issued, are fully paid and nonassessable and are free of any
preemptive or similar rights, any Shares to be sold hereunder have been (or
will have been) duly authorized and, when issued and delivered to the
purchasers of the Shares against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights and the Shares conform to the
description thereof in the Registration Statement or the Prospectus.
(c) The Fund has been duly formed and is validly existing in good
standing as a business trust under the laws of the State of Delaware, with
full power and authority to own its properties in trust and to conduct its
business as described in the Registration Statement and the Prospectus (and
any amendment or supplement to either of them) and is duly registered and
qualified to conduct business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or to qualify does not have a material, adverse effect on the
condition (financial or other), general affairs, business, properties, net
assets or results of operations of the Fund. The Fund has no subsidiaries.
(d) There are no legal or governmental proceedings pending or, to
the knowledge of the Fund, threatened, against the Fund, or to which the
Fund or any of its properties is subject, that are required to be described
in the Registration Statement or the Prospectus but are not described as
required and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act, the 1940 Act or the Rules and Regulations.
(e) The Fund is not in violation of its Agreement and Declaration
of Trust, By-Laws or other organizational documents or any law, ordinance,
administrative or governmental rule or regulation applicable to the Fund or
of any decree of the Commission, the NASD, any state securities commission,
any national securities exchange, any arbitrator, any court or any other
governmental, regulatory, self-regulatory or administrative agency or any
other agency or any body or official having jurisdiction over the Fund or
in material breach or material default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any agreement, indenture, lease
or other instrument to which the Fund is a party or by which it or any of
its properties may be bound, and which, as a result of such violation,
material breach or material default would reasonably be expected to have a
material, adverse affect on the Fund's ability to perform its obligations
under this Agreement.
(f) Neither the issuance and sale of the Shares contemplated by
this Agreement, the execution, delivery or performance of this Agreement or
any of the Fund Agreements by the Fund, nor the consummation by the Fund of
the transactions contemplated hereby or thereby with respect to the Initial
Offering (i) requires any consent, approval, authorization or order of or
registration or filing with the Commission, the NASD, any state securities
commission, any national securities exchange, any arbitrator, any court,
regulatory, body, administrative agency or other governmental body, agency
or official having jurisdiction over the Fund (except compliance with the
securities or Blue Sky laws of various jurisdictions which have been or
will be effected in accordance with this Agreement) or conflicts or will
conflict with or constitutes or will constitute a breach of the Agreement
and Declaration of Trust, By-Laws or other organizational documents of the
Fund or (ii) (A) conflicts or will conflict in a material manner with or
constitutes or will constitute a material breach of or a material default
under any material agreement, indenture, lease or other instrument to which
the Fund is a party or by which it or any of its properties may be bound,
and which, as a result of such material conflict, material breach or
material default, would reasonably be expected to have a material, adverse
affect on the Fund's ability to perform its obligations under this
Agreement or (B) materially violates will materially violate any statute,
law, regulation or filing or judgment, injunction, order or decree
applicable to the Fund or any of its properties or will result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Fund pursuant to the terms of any agreement or instrument
to which it is a party or by which it may be bound or to which any of the
property or assets of the Fund is subject, and which, as a result of such
violation or creation or imposition of any lien, charge or encumbrance
would reasonably be expected to have a material, adverse affect on the
Fund's ability to perform its obligations under this Agreement. As of the
date hereof, the Fund is not subject to any order of any court or of any
arbitrator, governmental authority or administrative agency.
(g) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material, adverse change in the condition
(financial or other), general affairs, business, properties, net assets or
results of operations of the Fund or business prospects (other than as a
result of a change in the financial markets generally) of the Fund, whether
or not arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Fund other than those in the ordinary
course of its business as described in the Prospectus and (iii) except as
previously disclosed in writing to the Distributor, there has been no
dividend or distribution of any kind declared, paid or made by the Fund on
any class of its shares of beneficial interest.
(h) The accountants, Ernst & Young LLP, who have audited the
statement of assets and liabilities included in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), have advised
the Board of Trustees of the Fund and the Investment Adviser that they are
an independent public accounting firm as required by the 1933 Act, the 1940
Act and the Rules and Regulations.
(i) The financial statements, together with their related
schedules (if any) and notes, included in the Registration Statement or the
Prospectus present fairly in all material respects the financial position
of the Fund on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved except as disclosed therein; and the other
financial and statistical information and data included in the Registration
Statement or the Prospectus are accurately derived in all material respects
from such financial statements and the books and records of the Fund.
(j) The Fund has taken all required action under the 1933 Act, the
1940 Act and the Rules and Regulations to consummate the sale of the Shares
as contemplated by this Agreement.
(k) The execution and delivery of and the performance by the Fund
of its obligations under this Agreement and the Fund Agreements have been
duly and validly authorized by the Fund and this Agreement and the Fund
Agreements have been duly executed and delivered by the Fund and each
constitutes the valid and legally binding agreement of the Fund,
enforceable against the Fund in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to the qualification that the enforceability of
the Fund's obligations hereunder and thereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general equitable
principles.
(l) Except as disclosed in or contemplated by the Registration
Statement or the Prospectus, subsequent to the respective dates as of which
such information is given in the Registration Statement and the Prospectus,
the Fund has not incurred any material liability or material obligation,
direct or contingent or entered into any transaction, not in the ordinary
course of business, and there has not been any material change in the
shares of beneficial interest or material increase in the short-term debt
or long-term debt of the Fund or any material, adverse change in the
condition (financial or other), general affairs, business or properties of
the Fund.
(m) The Fund has not distributed and, without the consent of the
Distributor, will not distribute to the public any offering material in
connection with the offering and sale of the Shares other than the
Registration Statement, the Prospectus and sales material filed with the
NASD.
(n) The Fund has such licenses, permits, and authorizations of
governmental or regulatory authorities ("permits") as are necessary to own
its property and to conduct its business in the manner described in the
Prospectus; the Fund has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows or, after notice or lapse of time, would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the Fund under any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such permits contains any restriction
that is materially burdensome to the Fund.
(o) [Reserved.]
(p) The conduct by the Fund of its business (as described in the
Prospectus) does not require it to be the owner, possessor or licensee of
any patents, patent licenses, trademarks, service marks or trade names
which it does not own, possess or license.
(q) Except as stated in this Agreement and in the Prospectus, the
Fund has not taken and will not take, directly or indirectly, any action
designed to or which should reasonably be expected to cause or result in or
which will constitute stabilization or manipulation of the price of the
Shares in violation of federal securities laws and the Fund is not aware of
any such action taken or to be taken by any affiliates of the Fund.
(r) The Fund is duly registered under the 1940 Act and Rules and
Regulations as a closed-end, non-diversified management investment company
and the 1940 Act Notification has been duly 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 and the Rules and Regulations; no order of
suspension or revocation of such registration under the 1940 Act and the
Rules and Regulations has been issued or proceedings therefor initiated or
threatened by the Commission. The provisions of the Agreement and
Declaration of Trust and Bylaws, and the investment policies and
restrictions described in each of the Registration Statement and the
Prospectus, comply in all material respects with the requirements of the
1940 Act and the Rules and Regulations.
(s) All advertising, sales literature or other promotional
material (including "prospectus wrappers" "broker kits," "road show slides"
and "road show scripts" authorized in writing by or prepared by the Fund
for use in connection with the offering and sale of the Shares
(collectively, "sales material")) complied and comply in all respects with
the applicable requirements of the 1933 Act, the 1933 Act Rules and
Regulations and the rules and interpretations of the NASD and, if required
to be filed with the NASD under the NASD's conduct rules, were so filed and
no such sales material, when read together with the Prospectus, contained
or contains an untrue statement of a material fact or omitted or omits 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.
(t) This Agreement and each of the Fund Agreements complies in all
material respects with all applicable provisions of the 1933 Act, the 1940
Act, the Rules and Regulations, the Advisers Act of 1940, as amended (the
"Advisers Act"), and the rules and regulations of the Commission
promulgated under the Investment Advisers Act (the "Advisers Act Rules and
Regulations").
(u) No holder of any security of the Fund has any right to require
registration of any Shares, or any other security of the Fund, because of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
6. Representations and Warranties of the Investment Adviser. The
Investment Adviser represents and warrants to you as follows:
(a) The Investment Adviser is a limited liability company duly
formed and validly existing in good standing under the laws of the State of
Delaware, with full limited liability company power and authority to own,
lease and operate its properties and to conduct its business as described
in each of the Registration Statement and the Prospectus (or any amendment
or supplement to either of them) and is duly registered and qualified to
conduct business and is in good standing in each jurisdiction or place
where the nature of its properties or conduct of its business requires such
registration or qualification, except where the failure so to register or
to qualify would not have a material, adverse affect on the condition
(financial or other), general affairs, business, properties, net assets or
results of operations of the Fund.
(b) The Investment Adviser is duly registered with the Commission
as an investment adviser under the Investment Advisers Act and is not
prohibited by the Investment Advisers Act, the 1940 Act, the Investment
Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations
from acting under the Advisory Agreement or any Sub-Advisory Agreement as
contemplated by the Registration Statement or the Prospectus. There does
not exist any proceeding which would reasonably be expected to have a
material, adverse affect on the registration of the Investment Adviser with
the Commission.
(c) There are no legal or governmental proceedings pending or, to
the knowledge of the Investment Adviser, threatened against the Investment
Adviser, that are required to be described in the Registration Statement or
the Prospectus but are not described as required or that could reasonably
be expected to result in any material, adverse change in the condition
(financial or other), properties, net assets or results of operations of
the Investment Adviser or that may have a material, adverse effect on the
ability of the Investment Adviser to perform its obligations under this
Agreement, the Advisory Agreement or any Sub-Advisory Agreement.
(d) Neither the execution, delivery or performance of this
Agreement, the Advisory Agreement or any Sub-Advisory Agreement by the
Investment Adviser, nor the consummation by the Investment Adviser of the
transactions contemplated hereby or thereby (i) requires the Investment
Adviser to obtain any consent, approval, authorization or other order of,
or registration or filing with, the Commission, the NASD, any state
securities commission, any national securities exchange, any arbitrator,
any court, regulatory body, administrative agency or other governmental
body, agency or official having jurisdiction over the Investment Adviser or
conflicts or will conflict with or constitutes or will constitute a
material breach of or a material default under the certificate of formation
or other organizational documents of the Investment Adviser or (ii) (A)
conflicts or will conflict in a material manner with or constitutes or will
constitute a material breach of or a material default under, any material
agreement, indenture, lease or other instrument to which the Investment
Adviser is a party or by which the Investment Adviser or any of its
properties may be bound, and which, as a result of such material conflict,
material breach or material default, would reasonably be expected to have a
material, adverse affect on the Investment Adviser's ability to perform its
obligations under this Agreement, the Investment Advisory Agreement and any
Sub-Advisory Agreement, or (B) materially violates or will materially
violate any material statute, law, regulation or judgment, injunction,
order or decree applicable to the Investment Adviser or any of its
properties or will result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Investment
Adviser pursuant to the terms of any agreement or instrument to which it is
a party or by which it may be bound or to which any of the property or
assets of the Investment Adviser is subject, and which, as a result of such
conflict, material breach, material default or creation or imposition of
any lien, charge or encumbrance, would reasonably be expected to materially
and adversely affect the Investment Advisers ability to perform its
obligations under this Agreement, the Investment Advisory Agreement and any
Sub-Advisory Agreement. The Investment Adviser is not subject to any order
of any court or of any arbitrator, governmental authority or administrative
agency.
(e) The Investment Adviser has full power and authority to enter
into this Agreement, the Advisory Agreement and each Sub-Advisory
Agreement, the execution and delivery of, and the performance by the
Investment Adviser of its obligations under, this Agreement, the Advisory
Agreement and each Sub-Advisory Agreement have been duly and validly
authorized by the Investment Adviser and this Agreement, the Advisory
Agreement and each Sub-Advisory Agreement have been duly executed and
delivered by the Investment Adviser and constitute the valid and legally
binding agreements of the Investment Adviser, enforceable against the
Investment Adviser in accordance with their terms, except as rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to the qualification that the enforceability of
the Investment Adviser's obligations hereunder and thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights
generally and by general equitable principles whether enforcement is
considered in a proceeding in equity or at law.
(f) The Investment Adviser has the financial resources necessary
for the performance of its services and obligations as contemplated in the
Registration Statement or the Prospectus or under this Agreement, the
Advisory Agreement or any Sub-Advisory Agreement.
(g) The description of the Investment Adviser and its business,
and the statements attributable to the Investment Adviser, in the
Registration Statement or the Prospectus (or any amendment or supplement to
either of them) complied and comply in all material respects with the
provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and
Regulations and the Advisers Act Rules and Regulations and did not and will
not 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 the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
(h) Since the date as of which information is given in the
Registration Statement or the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition
(financial or other), general affairs, business or properties of the
Investment Adviser and (ii) there have been no transactions entered into by
the Investment Adviser which are material to the Investment Adviser other
than those in the ordinary course of its business as described in the
Prospectus.
(i) The Investment Adviser has all such licenses, permits and
authorizations of governmental or regulatory authorities ("Adviser
permits") as are necessary to own its property and to conduct its business
in the manner described in the Prospectus (and any amendment or supplement
thereto); the Investment Adviser has fulfilled and performed all its
material obligations with respect to such Adviser permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the Investment Adviser under any such Adviser
permit.
(j) This Agreement, the Advisory Agreement and each Sub-Advisory
Agreement each comply in all material respects with all applicable
provisions of the 1940 Act, the 1940 Act Rules and Regulations, the
Advisers Act and the Advisers Act Rules and Regulations.
(k) Except as stated in this Agreement, the Registration Statement
or the Prospectus, the Investment Adviser has not taken and will not take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in or which will constitute stabilization or
manipulation of the price of the Shares or of any securities issued by the
Fund to facilitate the sale or resale of the Shares, in each case, in
violation of federal securities laws and the Investment Adviser is not
aware of any such action taken or to be taken by any affiliates of the
Investment Adviser.
7. Indemnification and Contribution.
(a) The Fund and the Investment Adviser, jointly and severally,
agree to indemnify and hold harmless you and each person, if any, who
controls the Distributor within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, from and against any and all losses, claims,
damages, liabilities and expenses, joint or several (including reasonable
costs of investigation), arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or any sales material or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon
and in conformity with the information relating to the Distributor or
Selling Agents furnished in writing to the Fund by or on behalf of the
Distributor through you expressly for use in connection therewith. The
foregoing indemnity agreement shall be in addition to any liability which
the Fund or the Investment Adviser may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Distributor or any person controlling the Distributor in respect of which
indemnity may be sought against the Fund or the Investment Adviser, the
Distributor or such controlling person shall promptly notify the Fund and
the Investment Adviser and the Fund or the Investment Adviser shall assume
the defense thereof, including the employment of counsel and the payment of
all fees and expenses. The Distributor or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Distributor or
controlling person unless (i) the Fund or the Investment Adviser have
agreed in writing to pay such fees and expenses, (ii) the Fund and the
Investment Adviser have 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 the
Distributor or such controlling person and the Fund or the Investment
Adviser and the Distributor or such controlling person shall have been
advised by its counsel that representation of such indemnified party and
the Fund or the Investment Adviser 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 them (in which case the
Fund and the Investment Adviser shall not have the right to assume the
defense of such action, suit or proceeding on behalf of the Distributor or
such controlling person). It is understood, however, that the Fund and the
Investment Adviser shall, in connection with any one such action, suit or
proceeding or separate but 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 if there is any action, suit or proceeding in more than one
jurisdiction) at any time for all the Distributor and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by the Distributor
and that, subject to the requirements of 1940 Act Release No. 11330, all
such fees and expenses shall be reimbursed promptly as they are incurred.
The Fund and the Investment Adviser shall not be liable for any settlement
of any such action, suit or proceeding effected without the written consent
of the Fund or the Investment Adviser, 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 Fund and the Investment Adviser agree to
indemnify and hold harmless the Distributor, to the extent provided in the
preceding paragraph and any such controlling person from and against any
loss, liability, damage or expense by reason by such settlement or
judgment.
(c) The Distributor agrees to indemnify and hold harmless the Fund
and the Investment Adviser, their trustees, manager(s) and members, as the
case may be, any officers of the Fund who sign the Registration Statement
and any person who controls the Fund or the Investment Adviser within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the
same extent as the foregoing indemnity from the Fund and the Investment
Adviser to the Distributor, but only with respect to information relating
to the Distributor furnished in writing by or on behalf of the Distributor
through you expressly for use in the Registration Statement or the
Prospectus. If any action, suit or proceeding shall be brought against the
Fund or the Investment Adviser, any of their directors, any such officer or
any such controlling person, based on the Registration Statement or the
Prospectus and in respect of which indemnity may be sought against the
Distributor pursuant to this paragraph (c), the Distributor shall have the
rights and duties given to each of the Fund and the Investment Adviser by
paragraph (b) above (except that if the Fund or the Investment Adviser
shall have assumed the defense thereof the Distributor shall not be
required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be
at the Distributor's expense) and the Fund and the Investment Adviser,
their trustees, members any such officer and any such controlling person
shall have the rights and duties given to the Distributors by paragraph (b)
above. The foregoing indemnity agreement shall be in addition to any
liability which the Distributors may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund and the Investment Adviser on the
one hand (treated jointly for this purpose as one person) and the
Distributor on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Fund and the Investment Adviser on the one hand (treated jointly for this
purpose as one person) and of the Distributor on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Fund and the
Investment Adviser on the one hand (treated jointly for this purpose as one
person) and the Distributor on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Fund bear to the total underwriting discounts and
commissions received by the Distributor. The relative fault of the Fund and
the Investment Adviser on the one hand (treated jointly for this purpose as
one person) and of the Distributor on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Fund and the
Investment Adviser on the one hand (treated jointly for this purpose as one
person) or by the Distributor on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Fund, the Investment Adviser and the Distributor agree
that it would not be just and equitable if contribution pursuant to this
Section 7 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 paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, the Distributor shall not
be required to contribute any amount in excess of the amount by which the
total price of the Shares distributed by it and distributed to the public
exceeds the amount of any damages which the Distributor has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability from
claimants on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Fund and the
Investment Adviser set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Distributor or any person controlling the Distributor, the
Fund, the Investment Adviser or their manager(s), trustees or officers, as
the case may be, or any person controlling the Fund or the Investment
Adviser, (ii) acceptance of any Shares and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to the Distributor or
to the Fund, the Investment Adviser or their manager(s), trustees or
officers, as the case may be, or any person controlling the Fund or the
Investment Adviser shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. Conditions of Distributor's Obligations. The obligation of the
Distributor to distribute any Shares are subject to, in the good faith
judgment of the Distributor, the accuracy of and compliance with the
representations, warranties and agreements of and by the Fund and the
Investment Adviser contained herein on and as of the date of this
Agreement, the Initial Closing Date or any Additional Closing Date; and to
the following conditions:
(a) There shall not have occurred (i) any change or any
development involving a prospective change in or affecting the condition
(financial or other), business, general affairs, properties, net assets, or
results of operations of the Fund or the Investment Adviser not
contemplated by the Prospectus, which in your opinion, would materially
adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Fund or the managing member or any
member or officer of the Investment Adviser or any officer or director of
the Fund or the Investment Adviser which makes any statement made in the
Prospectus untrue or which, in the opinion of the Fund and its counsel or
the Distributor, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the 1933 Act, the
1940 Act or the Rules and Regulations or any other law to be stated therein
or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, materially adversely affect the market
for the Shares.
(b) (i) No order suspending the effectiveness of the registration
statement or the Registration Statement or prohibiting or suspending the
use of the Prospectus or any sales material shall have been issued and no
proceedings for such purpose or for the purpose of commencing an
enforcement action against the Fund, the Investment Adviser or, with
respect to the transactions contemplated by the Prospectus and this
Agreement may be pending before or, to the knowledge of the Fund, the
Investment Adviser or the Distributor, shall be threatened or contemplated
by the Commission, (ii) there shall not have been any change in the
capitalization of the Fund nor any material increase in debt of the Fund
from that set forth in or contemplated by the Fund's then effective
Registration Statement or the Prospectus and the Fund shall not have
sustained any material liabilities or obligations, direct or contingent,
other than those reflected in or contemplated by the Fund's then effective
Registration Statement or the Prospectus; (iii) there shall not have been
any material, adverse change in the condition (financial or other), general
affairs, business, prospects, properties, net assets or results of
operations of the Fund or the Investment Adviser not disclosed in or
contemplated by the Fund's then effective Registration Statement or the
Prospectus; (iv) the Fund or the Investment Adviser must not have sustained
any material loss or interference with their businesses from any court or
from legislative or other governmental action, order or decree or from any
other occurrence not described in or contemplated by the Fund's then
effective Registration Statement or the Prospectus; and (v) all of the
representations and warranties of the Fund and the Investment Adviser
contained in this Agreement shall be true and correct in all material
respects on and as of any Closing Date as if made on and as of the date
hereof.
(c) That none of the Fund or the Investment Adviser shall have
failed at or prior to any Closing Date to have performed or complied with
any of the agreements herein contained and required to be performed or
complied with by them at or prior to such Closing Date.
(d) That the Fund and the Investment Adviser shall have furnished
to you such certificates and documents as you shall reasonably request
(including certificates of officers of the Fund and the Investment
Adviser).
All such certificates other documents will be in compliance with
the provisions hereof only if they are satisfactory in form and substance
to you and your counsel acting in good faith.
Any certificate or document signed by any officer of the Fund or
the Investment Adviser and delivered to you, as Distributor, shall be
deemed a representation and warranty by the Fund or the Investment Adviser
to each Selling Agent as to the statements made therein.
9. [Reserved].
10. Termination of Agreement.
(a) This Agreement shall be subject to termination in your
absolute discretion, without liability on the part of the Distributor to
the Fund or the Investment Adviser by notice to the Fund or the Investment
Adviser if (i) trading in securities generally on the New York Stock
Exchange, American Stock Exchange, Nasdaq National Market, Nasdaq SmallCap
Market or the Nasdaq Stock Market shall have been suspended or limited or
minimum prices shall have been established (ii) additional governmental
restrictions not in force on the date of this Agreement have been imposed
upon trading in securities generally (except for any governmental
restrictions already adopted with delayed effective dates) or a general
moratorium on commercial banking activities shall have been declared by
federal or any state's authorities or (iii) any outbreak or material
escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial, economic, legal or regulatory
conditions, occurs, the effect of which is such as to make it, in your
judgment, impracticable or inadvisable to commence or continue the offering
of Shares. Notice of such termination may be given to the Fund or the
Investment Adviser by telegram, telecopy or telephone but shall be
subsequently confirmed by letter.
(b) In the event of termination of this Agreement in accordance
with the foregoing clause (a) during the period of time immediately prior
to any Closing that trade details have been transmitted to the Fund/SERV
System, the Fund agrees to cause its custodian to immediately reimburse
each investor on the Closing Date (or such other date that the Fund/SERV
System settles the purchase and sale of Shares) the dollar amount
previously paid to the Fund for the purchase of Shares by such investors.
(c) After the Initial Closing Date, this Agreement shall continue
in full force and effect until terminated by a written instrument executed
by each of the parties hereto; provided, however, that the Distributor's
obligation to provide shareholder services with respect to any Shares held
by the Distributor for its clients' accounts shall continue in effect until
terminated by a written instrument setting forth the mutual agreements of
the Fund and the Distributor for the disposition of any Shares held by the
Distributor for its clients' accounts.
11. Expenses. The Fund agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by
the Fund of its obligations hereunder: (a) the preparation, printing or
reproduction, filing (including without limitation the filing fees
prescribed by the 1933 Act, the 1940 Act and the Rules and Regulations) and
distribution of the Registration Statement (including exhibits thereto),
the Prospectus and the 1940 Act Notification and all amendments or
supplements to any of them, (b) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus,
any sales material (and all amendments or supplements to any of them) as
may be reasonably requested for use in connection with the offering and
sale of the Shares, (c) the preparation, printing, authentication, issuance
and delivery of certificates (if any) for the Shares, including any stamp
taxes and transfer agent and registrar fees payable in connection with the
original issuance and sale of such Shares, (d) the registrations or
qualifications of the Shares for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of counsel for
the Distributor relating to the preparation, printing or reproduction and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification), (e) the fees and expenses of the Fund's
independent accountants, counsel for the Fund and of the Fund's transfer
agent, (f) the expenses of delivery to the Distributor and Selling Agents
(including postage, air freight and the cost of counting and packaging) of
copies of the Prospectus, any sales material and all amendments or
supplements to the Prospectus as may be requested for use in connection
with the offering and sale of the Shares, and (g) the printing (or
reproduction) and delivery of this Agreement, any dealer agreements, the
preliminary and supplemental Blue Sky Memoranda and all other
company-authorized agreements or other documents printed (or reproduced)
and delivered in connection with the offering of the Shares.
12. Miscellaneous. Except as otherwise provided herein, notice
given pursuant to any provision of this Agreement shall be in writing and
shall be delivered (a) if to the Fund or the Investment Adviser, c/o
Advantage Advisers, L.L.C., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: Xxxxxx X. Xxxxxx, with copies to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxx X. XxXxxx and Xxxxxxx, Xxxx & Xxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx; (b) if to
you, at the office of CIBC World Markets Corp., 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Counsel.
This Agreement has been and is made solely for the benefit of the
Distributor, the Fund, the Investment Adviser, their trustees or directors,
managers, members and officers and the other controlling persons referred
to in Section 7 hereof and their respective successors and assigns, to the
extent provided herein and no other person shall acquire or have any right
under or by virtue of this Agreement. Neither the term "successor" or the
term "successors and assigns" as used in this Agreement shall include a
purchaser from the Distributor or any Selling Agent of any of the Shares in
his status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party
hereto.
Please confirm that the foregoing correctly sets forth the
agreement among the Fund, the Investment Adviser and the Distributor
Very truly yours,
ADVANTAGE ADVISERS
MULTI-SECTOR FUND I
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Title: Chairman
ADVANTAGE ADVISERS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Title:
CIBC WORLD MARKETS CORP.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Title:
