Exhibit 99(h)
FORM OF PLACEMENT AGENT AGREEMENT
between
XXXXXXX XXXXX HEDGE FUND PARTNERS REGISTERED MASTER FUND, LLC
and
XXXXXXX, SACHS & CO.
PLACEMENT AGENT AGREEMENT
PLACEMENT AGENT AGREEMENT, dated as of [ ], 2005 (the "Agreement"),
between XXXXXXX XXXXX HEDGE FUND PARTNERS REGISTERED MASTER FUND, LLC, a
closed-end management investment company organized as a limited liability
company formed under the laws of the State of Delaware (the "Fund"), and
XXXXXXX, SACHS & CO., a limited partnership organized under the laws of the
State of New York (the "Placement Agent").
RECITALS
The Fund proposes to offer for sale limited liability company
interests in the Fund (the "Interests"), on the terms and conditions set
forth in its Private Placement Memorandum included as part of the Fund's
Registration Statement on Form N-2 (such Private Placement Memorandum, as
amended or supplemented from time to time, is referred to herein as the
"Memorandum");
The Fund desires to appoint the Placement Agent to obtain purchasers
for the Interests and to facilitate the offering of the Interests in
accordance with the terms and provisions of this Agreement; and
The Placement Agent is ready and willing to act as placement agent for
the Fund and to provide the services necessary to effect the offering of
the Interests, upon the terms and conditions hereinafter set forth in this
Agreement.
The Fund and the Placement Agent agree as follows:
1. Defined Terms.
Capitalized terms used, but not defined, herein shall have the
meanings provided to such terms in the Memorandum. As used in this
Agreement, the term "affiliate" shall mean, with respect to any person or
entity ("person"), any person controlling, controlled by or under common
control with such person, and any of such person's directors, stockholders,
partners, members, officers and employees. As used in this Agreement, the
term "Qualified Investor" shall mean a person that is both (i) an
"accredited investor" as defined under Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), and
(ii) a "qualified client" as defined in Rule 205-3(d)(1) promulgated under
the Investment Advisers Act of 1940, as amended (the "Advisers Act").
2. Appointment of Placement Agent.
The Fund hereby appoints the Placement Agent as placement agent for
the Fund for the period and upon the terms herein set forth, for the
purposes of obtaining purchasers for, and assisting in the offering of, the
Interests in the manner contemplated herein. The Placement Agent hereby
accepts such appointment and agrees to use commercially reasonable efforts
during such period to find eligible purchasers for the Interests. The Fund
or the Placement Agent, from time to time in their sole discretion, may
appoint other placement agents or sub-placement agents, respectively, who
may or may not be affiliated with the Placement Agent, on such terms as the
Managing Member or the Placement Agent may determine.
3. Offer and Sale of Interests.
(a) Pursuant to the Memorandum, the Fund is offering Interests.
Interests will be offered initially through such date as the Fund
determines. After the initial closing of the offering of the Interests to a
party other than Xxxxxxx Xxxxx Hedge Fund Strategies LLC or The Xxxxxxx
Sachs Group, Inc. (the "Initial Closing Date"), Interests will be offered
for sale at such other times as the Fund, in its sole discretion, may
allow. Interests will be offered, subject to the minimum commitment per
subscriber ("Subscriber"), as set forth in the Memorandum. The capital
contribution of any Subscriber whose subscription is accepted by the Fund
shall be made as provided in the Fund's form of the subscription agreement
(the "Subscription Agreement").
(b) Each Subscriber will be required to deliver a completed
Subscription Agreement to the Fund at the address specified therein. No
prospective purchaser shall have the right to purchase any Interests until
the Subscription Agreement shall have been accepted by the Fund. The Fund
may reject any Subscription Agreement for any reason. The Fund and the
Placement Agent agree that Interests may only be offered and sold to
Qualified Investors.
(c) Affiliates of the Placement Agent may purchase Interests for their
own account as principal, although they will be under no obligation to do
so.
(d) Unless the Fund and/or the Interests have been registered for
public sale under the laws of a relevant jurisdiction, neither the
Placement Agent nor the Fund, nor any person acting on behalf of either,
including any affiliate or sales or marketing agent, will offer to sell,
offer for sale or sell the Interests by means of any (i) form of general
solicitation or general advertising, (ii) advertisement, article, notice or
other communication published in any newspaper, magazine or similar medium
or broadcast over television or radio, or (iii) seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
(e) Offers of the Interests will be made by the Placement Agent, and
any person acting on its behalf, including any affiliates or sales or
marketing agent, only through the Memorandum and other documents mutually
agreed upon between the Placement Agent and the Fund.
(f) The Placement Agent, and any person acting on its behalf,
including any affiliate or sales or marketing agent, will comply with all
applicable provisions of law with respect to anything done by it in
relation to the Interests; and neither the Placement Agent nor the Fund nor
any person acting on behalf of either, including any affiliate or sales or
marketing agent, will offer for sale or sell the Interests by means of any
document or in any manner that does not comply with applicable laws and
regulations.
(g) Each of the Placement Agent and the Fund shall, and shall cause
any person acting on its behalf to, offer the Interests in compliance with
the applicable law in any jurisdiction in which such offering is made.
4. Reliance.
The Fund acknowledges that the Placement Agent, in arranging for the
placement of the Interests, will do so in reliance on the representations,
warranties, covenants and agreements of the Fund contained herein. The
Placement Agent acknowledges that the Fund, in its engagement of the
Placement Agent in connection with the placement of the Interests, does so
in reliance on the representations, warranties, covenants and agreements of
the Placement Agent contained herein.
5. Representations and Warranties of the Fund.
The Fund represents, warrants and agrees to and with the Placement
Agent, for its benefit that:
(a) the Fund will, when the Interests have been issued, be a duly
formed and validly existing limited liability company under the laws of the
State of Delaware and have the requisite power and authority to conduct the
Fund's business as contemplated by the Memorandum;
(b) the execution, delivery and performance of this Agreement have
been duly authorized by all necessary action of the Fund, and upon
execution and delivery hereof, this Agreement will be a valid, binding and
enforceable obligation of the Fund;
(c) the description of the Interests contained in the Memorandum
conforms in all material respects to the terms and conditions set forth in
the LLC Agreement under which the Interests are issued;
(d) the Interests, when issued and paid for in the amounts and for the
consideration described in the Memorandum, will be entitled to the rights
and subject to the restrictions and conditions contained in the LLC
Agreement; no holder of Interests (a "Member") will be personally liable
for the debts and obligations of the Fund by the mere reason of being such
a Member in excess of such Member's respective capital accounts for the
year (or relevant portion thereof) to which any such debts or obligations
are attributable; and all necessary action required to be taken for the
authorization, issue and sale of the Interests has been validly and
sufficiently taken; and
(e) the Fund shall (i) take all necessary action (including filings
with the Securities and Exchange Commission (the "SEC") and state
securities administrators) to ensure an exemption from the registration and
qualification requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and other Federal and state securities laws (other than
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), in connection with the Interests; (ii) coordinate and prepare such
reports, applications and documents as may be necessary to comply with the
relevant provisions of state securities laws in connection with the
transaction contemplated by this Agreement, including the filing of copies
of documents filed with the SEC, and furnish any required consent to
service of process, and pay any required fees, in connection therewith; and
(iii) the Fund agrees to file from time to time such amendments, reports
and other documents as may be necessary in order that there will be no
untrue statement of a material fact in the Memorandum, or omission to state
a material fact in the Memorandum which omission would make the statements
therein, in light of the circumstances under which the Memorandum is to be
used, not misleading.
6. Representations, Warranties and Covenants of the Placement Agent.
The Placement Agent represents, warrants and agrees with the Fund, for
its benefit that:
(a) the execution, delivery and performance of this Agreement by the
Placement Agent has been duly authorized by all necessary action, and upon
execution and delivery hereof, this Agreement will be a valid, binding and
enforceable obligation of the Placement Agent;
(b) the Placement Agent will offer the Interests for sale and will
solicit offers to buy the Interests only in compliance with the procedures
described in the Memorandum and this Agreement and in accordance with
Federal and state laws and National Association of Securities Dealers, Inc.
rules and regulations applicable to it as placement agent in relation to
the offer and sale of Interests;
(c) the Placement Agent will offer the Interests for sale to, and will
only solicit offers to buy the Interests from, persons it reasonably
believes to be Qualified Investors;
(d) without the prior consent of the Fund, no steps will be taken to
qualify the Interests for sale in any jurisdiction;
(e) neither the Placement Agent, nor any affiliate of the Placement
Agent, shall offer the Interests in any jurisdiction, except in compliance
with the applicable law in any such jurisdiction in which such offering is
made;
(f) the Placement Agent is not authorized by the Fund to give any
information or to make any representations other than those contained in
the Memorandum and any other literature or documentation approved by the
Fund and provided to the Placement Agent reasonably in advance.
7. Covenants of the Fund.
The Fund covenants with the Placement Agent that:
(a) the Fund will require any other person appointed as placement
agent to offer the Interests for sale, or solicit offers to buy the
Interests, only in accordance with the procedures described in the
Memorandum and in this Agreement;
(b) the Fund will, so long as any of the Interests remain outstanding,
furnish directly to the Placement Agent copies of each communication sent
to the Members, including any annual or interim report of the Fund, as soon
as such communications or reports are delivered or made available to the
Members;
(c) without the prior consent of the Placement Agent, no steps will be
taken to qualify the Interests for sale in any jurisdiction;
(d) neither the Fund, nor any affiliate of the Fund, shall offer the
Interests in any jurisdiction, except in compliance with the applicable law
in any such jurisdiction in which such offering is made; and
(e) the Fund will notify the Placement Agent promptly of any
occurrence of which it becomes aware which is material in the context of
the offering and sale of the Interests, including any event which shall
lead the Fund to reasonably believe that the Memorandum will be misleading,
or which affects any of the representations, warranties, agreements and
indemnities by the Fund contained in this Agreement (or which would have
affected any of the same if this Agreement had been entered into
immediately thereafter) and will take such steps as may be reasonably
requested by the Placement Agent to remedy and/or publicize the same and to
indemnify the Placement Agent out of the assets of the Fund in respect of
any such steps taken by it.
8. Payment of Fees and Expenses.
The Fund will pay all expenses of the offering of Interests,
including, without limitation (i) the fees, disbursements and expenses of
counsel to the Fund; (ii) expenses of preparing, reproducing, mailing
and/or delivering offering and sales materials, including annual reports,
to purchasers; (iii) the fees, disbursements and expenses of counsel to the
Placement Agent; and (iv) the reasonable out-of-pocket expenses incurred by
the Placement Agent in marketing the Interests and any additional amounts
it may incur or may have incurred in connection with the marketing of the
Interests. The Placement Agent is responsible for paying all fees and
expenses incurred in connection with its registration as a broker or dealer
or the registration or qualification of its offices, partners, directors,
employees, agents or representatives under Federal and state securities
law.
9. Conditions of Placement Agent's and Fund's Obligations.
The obligations of the Placement Agent and the Fund to effect the
transactions contemplated under this Agreement are subject to the
fulfillment of the following conditions, any one or more of which may be
waived by mutual agreement of the Placement Agent and the Fund:
(a) the Placement Agent and the Fund shall each have performed and
complied in all material respects with the covenants contained in this
Agreement required to be performed and complied with by it prior to each
date on which the Interests are offered and each of the representations and
warranties of the Fund and the Placement Agent set forth in this Agreement
shall be true and correct in all material respects as of such date;
(b) the Placement Agent and the Fund shall each have received
satisfactory opinions of counsel as it shall reasonably deem appropriate;
(c) this Agreement shall have been duly executed and delivered and be
in full force and effect;
(d) the Placement Agent and the Fund shall have been furnished with
such additional information, opinions, certificates and documents as each
of them may reasonably request; and
(e) all actions taken by the Placement Agent and the Fund in
connection with the sale of the Interests as contemplated herein and in the
Memorandum shall be reasonably satisfactory in form and substance to the
Placement Agent, the Fund and their respective counsel.
If any of the conditions specified in this Section 9 shall not have
been fulfilled or waived when and as required by this Agreement to be
fulfilled or waived, the Placement Agent or the Fund, as applicable, shall
inform the defaulting party in writing of each condition which has not been
fulfilled or waived and shall permit the defaulting party a reasonable time
under the circumstances to fulfill such conditions, after which time this
Agreement and all of the Placement Agent's or Fund's obligations hereunder,
as applicable, may be canceled by the Placement Agent or the Fund by
notifying the defaulting party of such cancellation in writing or by telex
or telecopy at any time at or prior to the Initial Closing Date or any
subsequent offering date, as applicable, and the sale of the Interests to
be made at such Initial Closing Date or subsequent offering date shall not
take place. Any such cancellation or termination shall be without liability
of any party to any other party except that obligations that may arise in
accordance with Sections 8, 10 and 11 shall continue after termination of
this Agreement.
10. Indemnification and Contribution.
(a) The Fund will indemnify and hold harmless the Placement Agent, its
affiliates and any person acting on its behalf against any losses, claims,
damages or liabilities (or actions in respect thereof), joint or several
(the "Covered Claims"), to which the Placement Agent may become subject,
insofar as such Covered Claims arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Memorandum, 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, in light of the circumstances
under which they are made, not misleading. The Fund will reimburse the
Placement Agent for any legal or other expenses reasonably incurred by the
Placement Agent in connection with investigating or defending any such
Covered Claims; provided, however, that the Fund shall not be liable to so
indemnify or reimburse the Placement Agent in any such case to the extent
that any such Covered Claims arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in the Memorandum in reliance upon and in conformity with written
information furnished to the Fund by the Placement Agent expressly for use
therein. The Fund acknowledges and agrees that as of the date hereof the
Placement Agent has not provided any information in connection with the
Memorandum.
(b) The Placement Agent will indemnify and hold harmless the Fund
against any Covered Claims to which the Fund may become subject insofar as
such Covered Claims arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Memorandum, 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, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Memorandum, in reliance upon and in
conformity with the written information furnished to the Fund by the
Placement Agent referred to in subsection (a) above; and will reimburse the
Fund for any legal or other expenses reasonably incurred by the Fund in
connection with investigating or defending any such Covered Claims.
(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
indemnifying party in writing of the commencement thereof; but the omission
to so notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action is brought against any indemnified
party and such indemnified party notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party). After notice from the indemnifying party to such indemnified party
of the indemnifying party's election to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection 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.
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect to any Covered Claims referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such Covered Claims in
such proportion as is appropriate to reflect the relative benefits received
by the Fund and the Placement Agent from the offering of the Interests. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Fund and the Placement
Agent in connection with the statements or omissions which resulted in such
Covered Claims, as well as any other relevant equitable considerations. The
relative benefits received by the Fund and the Placement Agent shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Fund relative to the
value of total compensation, if any, received by the Placement Agent in
selling the Interests under this Agreement. The relative fault 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 or the Placement Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Fund and the Placement Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the Covered Claims referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such Covered Claims.
(e) The obligations of the Fund under this Section 10 shall be in
addition to any liability which the Fund may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Placement Agent within the meaning of the Securities Act, to
affiliates of the Placement Agent and to any person acting on behalf of any
such persons; and the obligations of the Placement Agent under this Section
10 shall be in addition to any liability which the Placement Agent may
otherwise have and shall extend, upon the same terms and conditions, to the
Managing Member of the Fund.
(f) Notwithstanding any of the foregoing to the contrary, the
provisions of this Section 10 shall not be construed so as to provide for
the indemnification of any indemnified party for any liability for a
Covered Claim (including liability under Federal securities laws which,
under certain circumstances, impose liability on persons that act in good
faith) to the extent (but only to the extent) that such indemnification
would be in violation of applicable law, including, without limitation, the
Investment Company Act, but shall be construed so as to effectuate the
provisions of this Section 10 to the fullest extent permitted by law.
11. Survival of Representations, Warranties and Agreements.
All representations, warranties, covenants and agreements in this
Agreement and any documents delivered by or on behalf of the Fund in
connection with this Agreement shall survive the offer and sale by the
Placement Agent of any Interests. The provisions of Sections 8, 10 and 11
shall survive the termination or cancellation of this Agreement.
12. Term.
This Agreement shall commence as of the Initial Closing Date and shall
remain in full force until two years from the Initial Closing Date and then
for successive annual periods thereafter, provided that each renewal is
specifically approved by (a) the Board of Managers of the Fund (the
"Board"), or (b) a vote of a majority of the Fund's outstanding voting
securities (as defined in the Investment Company Act), each cast in person
at a meeting called for the purpose of voting on such approval, provided
further that the renewal is also approved by a vote of a majority of the
members of the Board who are not "interested persons" (as defined in the
Investment Company Act) of the Fund or any party to this Agreement.
13. Termination.
(a) The Placement Agent shall have the right to terminate this
Agreement forthwith by promptly notifying the Fund by telephone, telex or
telecopy and providing written confirmation (sent by courier or registered
air mail), at any time prior to the Initial Closing Date or any subsequent
offering date, as applicable, if:
(i) there shall have been, since the date as of which information
is given in the Memorandum, any material adverse change (not promptly
corrected to the satisfaction of the Placement Agent after notice thereof
to the Fund from the Placement Agent) in the affairs or business prospects
of the Fund;
(ii) there shall have occurred any change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls, the effect of which is in the judgment
of the Placement Agent such as to make it impracticable or inadvisable to
proceed with the offering and delivery of Interests on the terms and in the
manner contemplated in this Agreement or the Memorandum; or
(iii)trading on the New York Stock Exchange generally shall have
been suspended or materially limited, or a banking moratorium or exchange
controls shall have been declared by United States or New York State
authorities.
(b) This agreement may be terminated by the Fund on 60 days' prior
written notice to the Placement Agent (which notice may be waived by the
Placement Agent); provided, however, that the Fund may terminate this
agreement if the Placement Agent shall fail in any material respect to
comply with its obligations hereunder and such failure is not cured within
30 days of notice from the Fund.
(c) This agreement shall terminate automatically in the event of its
assignment (as defined in the Investment Company Act).
(d) If this Agreement is terminated in accordance with Section 12 or
if the Placement Agent terminates this Agreement as provided in paragraph
(a) of this Section 13, such termination shall be without liability of any
party to any other except that obligations that may arise in accordance
with Sections 8, 10 and 11 shall continue after such termination of this
Agreement.
14. Notices.
Except as otherwise provided herein, all communications hereunder
shall be in writing and shall be delivered, telexed or telecopied and
confirmed in writing, sent by registered air mail, to the requisite party,
at its address as follows:
If to the Placement Agent:
-------------------------
Xxxxxxx, Xxxxx & Co.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:General Counsel, Investment Management
Division of Xxxxxxx, Sachs & Co.
Telefax: (000) 000-0000
If to the Fund:
--------------
Xxxxxxx Xxxxx Hedge Fund Partners Registered
Master Fund, LLC
c/x Xxxxxxx Sachs Asset Management, L.P.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention:President and Chief Executive Officer
Telefax: (000) 000-0000
or to such other address as to which the party receiving the notice
shall have notified the other party in writing.
15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Placement Agent and the Fund, and their respective successors and permitted
assigns. Nothing in this Agreement is intended to confer upon any other
person except the parties hereto any rights or remedies hereunder. Neither
the Placement Agent nor the Fund shall be entitled to assign its respective
rights, interests or obligations hereunder without the written consent of
the other party hereto; provided, however, that none of the foregoing shall
restrict the ability of the Placement Agent, in its sole discretion, to
appoint affiliates or designees to fulfill any or all of its obligations
under this Agreement.
16. Governing Law.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts
of laws principles thereof, and the applicable provisions of applicable
Federal law. To the extent that the applicable laws of the State of New
York, or any of the provisions herein, conflict with the applicable
provisions of Federal law, the latter shall control.
17. Entire Agreement; Amendment; Severability.
This Agreement states the entire agreement of the parties with respect
to the offering of Interests and may be amended by the parties only if such
amendment is specifically approved by (a) the Board, or (b) a vote of a
majority of the Fund's outstanding voting securities (as defined in the
Investment Company Act), each by vote cast in person at a meeting called
for the purpose of voting on such approval, provided that in either event
the renewal is also approved by a vote of a majority of the members of the
Board who are not "interested persons" of the Fund or any party to this
Agreement. If any provision or any part of a provision of this Agreement
shall be found to be void or unenforceable, it shall not affect the
remaining part which shall remain in full force and effect.
18. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Fund and the Placement Agent have caused their
duly authorized representatives to execute this Agreement as of the date
first written above.
XXXXXXX XXXXX HEDGE FUND PARTNERS
REGISTERED MASTER FUND, LLC
By:
-----------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO.
By:
-----------------------------------------
Name:
Title:
