ROBECO-SAGE TRITON FUND, L.L.C.
000 XXXXX XXXXXX
XXX XXXX, XX 00000
Robeco Securities, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: APPOINTMENT OF DISTRIBUTOR
Ladies and Gentlemen:
Pursuant to the terms of this agreement, amended and restated as of
the [1st day of October], 2008 (the "Agreement"), Robeco-Sage Triton Fund,
L.L.C., a limited liability company organized under the laws of the State of
Delaware (the "Company") and registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a non-diversified closed-end management
investment company, hereby agrees with you as follows:
1. COMPANY OFFERING.
The Company issues and sells its units of limited liability company
interests ("Units") in accordance with the Company's prospectus, as amended or
supplemented from time to time (the "Prospectus").
2. DEFINITIONS.
All capitalized terms used in this Agreement that are not separately
defined herein shall have the respective meaning set forth in the Prospectus,
which together with the limited liability company agreement of the Company and
the investor certification of the Company, as each may be amended from time to
time, constitute the offering documents of the Company (collectively, the
"Offering Documents").
3. DISTRIBUTION OF UNITS AND MEMBER SERVICES.
(a) Subject to the terms and conditions set forth herein, the
Company hereby appoints you as its distributor in connection with the
distribution of Units. Subject to the performance in all material respects by
the Company of its obligations hereunder, and to the completeness and accuracy
in all material respects of all of the representations and warranties of the
Company contained herein, you hereby accept such agency and agree on the terms
and conditions herein set forth to offer Units to qualified subscribers. You
shall have the right hereunder to retain other securities dealers ("Sub-Agents")
to conduct such solicitation and agree to use all reasonable efforts to assist
the Company in obtaining performance by each subscriber. Each Sub-Agent shall
give you in a separate Sub-Agency Agreement representations and warranties
substantially similar to those contained in Section 8 of this Agreement. You
agree (and will ensure that each Sub-Agent agrees) that Units shall be offered
and sold only in accordance with the terms and conditions set forth in this
Agreement (or Sub-Agency Agreement) and the Offering Documents. You shall not
have any liability to the Company in the
event that any subscriber fails to consummate the purchase of Units for any
reason other than your willful misconduct or gross negligence. Within the United
States, you shall offer and sell Units only to such Sub-Agents as are members in
good standing of the Financial Industry Regulatory Authority, Inc. ("FINRA").
(b) In addition, you shall facilitate and assist in the
provision by Sub-Agents of personal investor services and account maintenance
services ("Member Services") to members of the Company ("Members") that are
customers of such Sub-Agents. These Member Services shall include, but shall not
be limited to:
(i) handling inquiries from Members regarding the
Company, including but not limited to question
concerning their investments in the Company, and
reports and tax information provided by the Company;
(ii) assisting in the enhancement of communications
between Members and the Company;
(iii) notifying the Company of any changes to Member
information, such as changes of address; and
(iv) providing such other information and Member
Services as may be reasonably requested by the Company
or, in the case of Sub-Agents, by you.
(c) You shall adopt and follow procedures, as approved by the
officers of the Company, for the confirmation of sales to investors and
Sub-Agents, the collection of amounts payable by investors and Sub-Agents on
such sales, and the cancellation of unsettled transactions, as may be necessary
to comply with the requirements of FINRA, as such requirements may from time to
time exist.
(d) You agree to use your reasonable best efforts to offer and
sell Units to investors that you reasonably believe meet the eligibility
requirements set forth in the Prospectus and to use all reasonable efforts to
assist the Company in obtaining performance by each prospective investor who
submits an investor certification.
(e) You acknowledge that Units will be offered and sold only as
set forth in the Prospectus and the Company's Limited Liability Company
Agreement.
(f) No sale of Units to any one investor will be for less than
the minimum denominations as may be specified in the Prospectus or as otherwise
approved by the Board of Managers of the Company (the "Board"). (g) Sales of
Units will be made only to investors that qualify
as "qualified clients," as defined in Rule 205-3 under the Investment Advisers
Act of 1940, as amended.
(h) For purposes of the offering of Units, the Company has
furnished to you copies of the Offering Documents which you shall furnish to
prospective investors.
Additional copies of the Offering Documents will be furnished to you by the
Company in such numbers as you may reasonably request for purposes of the
offering. You are authorized to furnish to prospective purchasers only such
information concerning the Company and the offering as may be contained in the
Offering Documents or any written supplements thereto, and such other materials
as you have prepared and which comply with applicable laws and regulations,
including the rules of FINRA.
4. SUBSCRIPTIONS FOR UNITS.
(a) The Company may from time to time, in the sole discretion
of the Board, offer Units to investors for purchase ("Offerings").
(b) In Offerings, the minimum initial and additional investment
requirements shall be such amounts as are specified in the Prospectus. All
subscriptions for Units in Offerings and payments therefor shall be made
pursuant to the terms and conditions set forth in the Prospectus, and
subscriptions shall be subject to acceptance by the Company, as described in
Section 5 below.
(c) All payments received by you hereunder for subscriptions in
the name and on behalf of the Company shall be handled by you in accordance with
the terms of the subscription documentation.
(d) If the offering is not completed in accordance with the
conditions set forth in the Offering Documents, the Company may terminate the
offering. In such case, you will instruct the Company's escrow agent to return
all subscription payments to investors.
5. ACCEPTANCE OF SUBSCRIPTIONS.
(a) The Company may determine to appoint you as agent of the
Company for purposes of determining whether to accept subscriptions for Units.
Subscriptions shall be accepted only if the investor: (a) has supplied, or in
the case of an additional subscription by an existing member, previously
supplied, to you, either directly or indirectly, properly completed subscription
documentation; (b) has made proper payment for Units; and (c) you have made a
determination, using such reasonable procedures adopted by you, that the
investor meets all eligibility requirements for the purchase of Units.
Subscriptions shall not be accepted if it appears to you that subscription
documentation has not been properly completed, in which case you shall use
reasonable efforts to obtain properly completed subscription documentation.
(b) Properly completed subscription documentation shall be
promptly transmitted to the administrator for the Company.
(c) The Company or Robeco Investment Management, Inc. may
receive subscriptions for Units directly from investors.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
(a) The Company has been duly formed and is validly existing as
a limited liability company in good standing under the laws of the State of
Delaware with all requisite power and authority, all necessary authorizations,
approvals, orders, licenses, certificates and permits of and from all
governmental regulatory officials and bodies, and all necessary rights, licenses
and permits from other parties, to conduct its business as described in the
Prospectus.
(b) Units to be or which may be issued by the Company have been
duly authorized for issuance and sale and, when issued and delivered by the
Company, Units will conform to all statements relating thereto contained in the
Prospectus.
(c) The issue and sale of Units and the execution, delivery and
performance of the Company's obligations under the Prospectus will not result in
the violation of any applicable law.
(d) The Company will apply the proceeds from the sale of Units
for the purposes set forth in the Prospectus.
(e) The Prospectus will not contain an untrue statement of any
material fact or omit to state any material fact necessary in order to make
statements therein in the light of the circumstances under which they were made,
not misleading.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming your execution hereof, will constitute a
valid and binding agreement of the Company.
7. COVENANTS OF THE COMPANY.
The Company covenants and agrees with you as follows:
(a) You shall be furnished with such documents and opinions as
you may require from time to time for the purpose of enabling you to pass upon
the issuance and sale of Units as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations and
warranties, or the fulfillment of any of the conditions herein contained; and
all proceedings taken by the Company and in connection with the issuance and
sale of Units as herein contemplated shall be satisfactory in form and substance
to you.
(b) If at any time after the commencement of the offering of
Units and prior to its termination, an event occurs which in the opinion of
counsel to the Company materially affects the Company and which should be set
forth in an amendment or supplement to the Prospectus in order to make the
statements therein not misleading in light of the circumstances under which they
are made, the Company will notify you as promptly as practical of the occurrence
of such event and will prepare and furnish to you copies of an amendment or
supplement to the Prospectus in such reasonable quantities as you may request,
in order that the Prospectus will not contain any untrue statement of any
material fact or omit to state a material fact which in the opinion of such
counsel is necessary to make the statements therein not misleading in light of
the circumstances under which they are made.
8. REPRESENTATIONS AND WARRANTIES OF THE DISTRIBUTOR.
You represent and warrant that:
(a) You are duly authorized to enter into and perform, and have
duly executed and delivered, this Agreement.
(b) You have and will maintain all licenses and registrations
necessary under applicable law and regulations (including the rules of FINRA) to
provide the services required to be provided by you hereunder.
(c) You have not and will not solicit any offer to buy or offer
to sell Units in any manner which would be inconsistent with applicable laws and
regulations (including, but not limited to, applicable anti-money laundering
laws and regulations), or with the procedures for solicitations contemplated by
the Prospectus, and this Agreement or by any form of general solicitation or
advertising, including, but not limited to, any advertisement, article, notice
or other communication published in any newspaper, magazine or similar medium or
broadcast over television or radio or conduct any seminar or meeting whose
attendees have been invited by any general solicitation or advertising.
(d) You will furnish to each subscriber of Units, identified
either by you or the Company, a copy of the Offering Documents prior to such
person's admission as a member of the Company.
(e) You will maintain the confidentiality of investor
information in a manner consistent with the privacy policy adopted by the
Company pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as amended.
(f) You agree that each Sub-Agency Agreement with a Sub-Agent
will contain provisions requiring that the Sub-Agent: (1) keep records (and make
them available to you) of the Offering Documents distributed to all persons; (2)
have reasonable procedures regarding the control and distribution of the
Offering Documents; (3) not create or use offering materials for distribution to
or use by prospective purchasers of Units, other than the Offering Documents
furnished by the Company and such other materials as you have supplied or
authorized for use; and (4) adopt and adhere to reasonable procedures designed
to ensure that the offering of the Units is made only in accordance with the
provisions of Section 3 relating to the offering of Units and clauses (a)
through (d) of this Section 8, in the case of the Sub-Agent as if the Sub-Agent
were the Distributor.
9. COMPENSATION OF DISTRIBUTOR.
(a) As compensation for the sale and marketing of Units and for
providing (or arranging for the provision of) ongoing Member Services, you will
receive an ongoing quarterly fee at an annualized rate of 0.75% of the net
assets of the Fund during the calendar quarter (after adjustments for any
purchases or repurchases of Units effective on that date), which will be due and
payable in arrears within five business days after the end of such quarter.
(b) You or a Sub-Agent are entitled to receive for your
services a sales load, as set forth in Schedule A.
(c) Pursuant to the terms of each Sub-Agency Agreement between
you and a Sub-Agent, a Sub-Agent may receive from you either a one-time fee or
an ongoing fee based upon the value of Units purchased by investors that it
introduces to the Company or based upon the initial contribution amount made by
such investors in the Company, not to exceed applicable limits as described in
Schedule A. The Company will not be liable to Sub-Agents for payment of any fees
pursuant to Sub-Agency Agreements or for reimbursement of any expenses incurred
by Sub-Agents in connection with services provided pursuant to Sub-Agency
Agreements.
(d) In accordance with applicable NASD Conduct Rules, you shall
cap the sales load you receive from investors at 2%. Further, parties understand
and agree that, pursuant to limitations on compensation imposed by FINRA,
aggregate compensation received by you and any Sub-Agents in connection with the
sale and marketing of Units and with ongoing Member Services, other than the
sales load paid by an investor, shall not exceed 6% of the total proceeds
proposed to be received by the Company in respect of sales of Units registered
under the Company's Registration Statement. Finally, parties understand and
agree that, pursuant to limitations imposed by FINRA, no payments will be made
to you and any other FINRA member exceeding, in the aggregate, 8% of the total
proceeds proposed to be received by the Company in respect of sales of Units
registered under the Company's Registration Statement.
(e) Except as may otherwise be agreed to by the Company, you
shall be responsible for the payment of all costs and expenses incurred by you
in connection with the performance of your obligations under this Agreement,
including the costs associated with the preparation, printing and distribution
of any sales materials.
10. INDEMNIFICATION.
The parties agree to indemnify one another as follows:
(a) The Company agrees to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities Exchange Act of 1934 (the
"Exchange Act"), against any and all losses, liabilities, claims, damages and
expenses whatsoever (including, but not limited to, attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which you or they may become subject under the Securities Act, the
Exchange Act or any other law or statute in any jurisdiction otherwise, insofar
as such losses, liabilities, claims, damages or expense (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by you or through you
expressly for the use therein; and further provided that this indemnity shall
not protect you or any other person who may otherwise be entitled to indemnity
hereunder from or against any liability to which you or they would be subject by
reason of your own or their own willful misfeasance, bad faith, gross negligence
or reckless disregard of your or their duties hereunder. Any determination by
the Company to indemnify you for the foregoing liabilities shall be made in
accordance with the requirements of Section 17 of the 1940 Act, as interpreted
by the Securities and Exchange Commission. This indemnity will be in addition to
any liability which the Company may otherwise have to you under this Agreement.
(b) You agree to indemnify and hold harmless the Company and
each person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever (including, but not limited
to, attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which you or they may become
subject under the Securities Act, the Exchange Act or any other law or statute
in any jurisdiction, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished by you or on your behalf to the Company expressly for use therein.
This indemnity will be in addition to any liability which you may have to the
Company under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any other
liability which it may have under this Section 10 (except to the extent that it
has been prejudiced in any material respect by such failure) or from any
liability which it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; PROVIDED, HOWEVER, that if, in the judgment of such
indemnified party, a conflict of interest exists where it is advisable for such
indemnified party to be represented by separate counsel, the indemnified party
shall have the right to employ separate counsel in any such action, in which
event the fees and expenses of such separate counsel shall be borne by the
indemnifying party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and the
approval by the
indemnified party of counsel, the indemnifying party shall not be liable to such
indemnified party under such subsections for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party or parties shall not be liable
for the expenses of more than one such separate counsel representing the
indemnified parties under subparagraph (a) of this Section 11 who are parties to
such action), (ii) the indemnifying party or parties shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or parties; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened 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
on claims that are the subject matter of such proceeding.
11. CONFIDENTIAL INFORMATION.
You will have access to and become acquainted with records of and
information relating to the Company, its investors and affiliates (collectively,
"Confidential Information"). Neither you nor any of your officers, employees or
agents shall disclose any of the Confidential Information (including any client
list or other confidential information relating to the businesses of the Company
or its affiliates), directly or indirectly, or use them in any way, either
during the term of this Agreement or at any time thereafter, except as required
in the course of performing duties for the Company under this Agreement and
unless the disclosure of any such Confidential Information is otherwise
consented to, in writing, by the Company. As used in this Section 11 the term
"Confidential Information" does not include information that (a) becomes or has
been generally available to the public other than as a result of disclosure by
the Company; (b) was available to you on a non-confidential basis prior to its
disclosure by the Company or any of its affiliates; or (c) is independently
developed or becomes available to you on a non-confidential basis from a source
other than the Company or its affiliates.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
The agreements, representations, warranties, indemnities and other
statements of the parties and their officers set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
you, or the Company, any Managers serving on the Board, directors or officers of
any of the foregoing or any person controlling any of the foregoing, and (iii)
acceptance of any payment for Units hereunder. The provisions of this Section 12
shall survive the termination or cancellation of this Agreement.
13. EFFECTIVE DATE AND TERM OF AGREEMENT.
This Agreement shall become effective as of the date above written
and shall continue in effect from year to year, provided that each such
continuance is approved by the Board, including the vote of a majority of
members of the Board who are not "interested persons," as defined by the 1940
Act and the rules thereunder, of the Company.
14. TERMINATION.
This Agreement may be terminated as follows:
(a) Either party may terminate this Agreement without cause by
written notice to the other on not less than thirty (30) days notice, or, if
there has been a material breach of any condition, warranty, representation or
other term of this Agreement by the other, by written notice to such other at
any time.
(b) By written notice to the Company, you may terminate this
Agreement at any time if (i) there has been, since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, of the Company, which in your opinion, will
make it inadvisable to proceed with the offering of Units; (ii) there has
occurred any outbreak of hostilities or other domestic or international calamity
or crisis the effect of which on the financial markets is so substantial and
adverse as to make it, in your judgment, impracticable to offer Units or enforce
contracts for the sale of Units; and (iii) any order suspending the sale of
Units shall have been issued by any jurisdiction in which a sale or sales of
Units shall have been made, or proceedings for that purpose shall have been
initiated or, to your best knowledge and belief, shall be contemplated.
(c) This Agreement shall terminate automatically in the event
of its "assignment" as such term is defined by the 1940 Act and the rules
thereunder.
(d) In the event the offering of Units is terminated, you and
any Sub-Agents will not be entitled to unrecovered compensation (except for
out-of-pocket expenses).
15. DELEGATION OF POWERS.
You shall be entitled to delegate your duties, functions or powers
under this Agreement only to a Sub-Agent in accordance with the provisions of
this Agreement.
16. NOTICES.
All communications under this Agreement shall be given in writing,
sent by (i) telecopier, (ii) email, or (iii) registered mail to the address set
forth below or to such other address as such party shall have specified in
writing to the other party hereto, and shall be deemed to have been delivered
effective at the earlier of its receipt or within two (2) days after dispatch.
If to the Distributor:
Robeco Securities, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Attn.: General Counsel
If to the Company:
Robeco-Sage Triton Fund, L.L.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxxx
17. MISCELLANEOUS.
(a) This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns and no
other person shall have any right or obligation hereunder.
(b) This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof, and neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated except by
an instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
18. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to the conflicts of laws
provisions thereof, and with the provisions of the 1940 Act. In the event of any
conflict between the provisions of the laws of New York and those of the 1940
Act, the 1940 Act provisions shall control.
19. BINDING EFFECT
The parties to this Agreement agree that the obligations of the
Company under this Agreement shall not be binding upon any Managers, Members or
any officers, employees or agents, whether past, present or future, of the
Company, individually, but are binding only upon the assets and property of the
Company.
If the foregoing correctly sets forth our understanding with you,
please indicate your acceptance in the space provided below.
Very truly yours,
ROBECO-SAGE TRITON FUND, L.L.C.
By
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Principal Manager
Agreed to and accepted:
ROBECO SECURITIES, L.L.C.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, III
Title: Senior Managing Director
SCHEDULE A
Robeco Securities, L.L.C. (the "Distributor") or a Sub-Agent is entitled to
charge a sales load to each investor on the purchase price of its Units of up to
2.0% as specified in the Prospectus upon acceptance of the investor's purchase
of Units; provided that the Distributor shall have the authority to adjust or
waive the sales load in particular cases, at its sole discretion, in
consultation with the Company, its investment adviser, Robeco Investment
Management, Inc. (the "Adviser") or its administrator, SEI Investments Global
Funds Services, and as generally described in the Prospectus.
In accordance with applicable NASD Conduct Rules, the Distributor shall cap the
sales load it or a Sub-Agent receives from investors at 2%. Further, parties
understand and agree that, pursuant to limitations imposed by FINRA, any
compensation paid, other than the sales load paid by an investor, by the Adviser
and the Distributor to the Sub-Agents shall not exceed, in the aggregate, 6% of
the total proceeds proposed to be received by the Company in respect of sales of
Units registered under the Company's current registration statement on Form N-2
(the "Registration Statement"). Finally, parties understand and agree that,
pursuant to limitations imposed by FINRA, no payments will be made to the
Distributor and any other NASD member exceeding, in the aggregate, 8% of the
total proceeds proposed to be received by the Company in respect of sales of
Units registered under the Company's Registration Statement.
