EXHIBIT 99.B2(h)(i)
As of October 11, 2002
PRIVATE AND CONFIDENTIAL
Fleet National Bank
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Ladies and Gentlemen:
This letter agreement (the "Placement Agreement") confirms our
understanding that Columbia Management Multi-Strategy Hedge Fund, LLC, a
Delaware limited liability company (the "Fund"), has engaged Fleet National Bank
("Fleet") to act as non-exclusive placement agent to the Fund. All terms with
initial capital letters not otherwise defined in the Placement Agreement shall
have the meanings set forth in the Fund's limited liability company agreement as
in effect from time to time (the "Operating Agreement").
Fleet will act as non-exclusive placement agent for the Fund in connection
with the private placement of membership interests in the Fund (the "Interests")
to be issued by the Fund in one or more transactions (each a "Private
Placement") intended to be exempt from registration under the Securities Act of
1933, as amended (the "Securities Act") pursuant to Rule 506 of Regulation D
("Regulation D") under the Securities Act and under the applicable law and
regulations of any other jurisdictions in which the Interests are offered. The
Fund is in the process of registering with the Securities and Exchange
Commission as a closed-end management Fund in accordance with the Investment
Fund Act of 1940, as amended (the "1940 Act").
COMPENSATION TO FLEET, FEES AND EXPENSES
Fleet will not receive compensation from the Fund for its efforts under the
Placement Agreement in connection with the sale of Interests, and shall bear all
expenses it incurs in connection therewith.
OFFERS OF THE INTERESTS
By entering into the Placement Agreement, Fleet acknowledges that the
Interests are to be issued in a Private Placement and agrees to observe the
private placement procedures established from time to time by the Fund and/or by
Columbia Management Company, the Fund's investment adviser (the "Adviser"), and
communicated to Fleet in writing (the "Private Placement Procedures") in
offering the Interests. Furthermore, Fleet represents that neither it, nor
anyone acting on its behalf, either directly or indirectly through an agent, has
offered or sold
or will offer or sell Interests on behalf of the Fund except in compliance with
the Private Placement Procedures or engaged or will engage in any form of
general solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
Fleet represents that it is not required to register as a broker-dealer
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
under the securities or Blue Sky laws of any jurisdiction in which it will offer
Interests and that it is not required to be a member of the National Association
of Securities Dealers, Inc. ("NASD"). Fleet will comply with the Securities Act,
the Securities Exchange Act of 1934, as amended, the 1940 Act, the securities or
Blue Sky Laws of each jurisdiction in which the offer of the Interests may be
made and any applicable rule, regulation, judgment, order, decree or stipulation
made, issued or promulgated under any of such laws or promulgated by the NASD,
to which the offer of the Interests may be subject ("Applicable Law") in
connection with its activities pursuant to the Placement Agreement. Fleet will
also comply with all broker-dealer, agent or registered representative
requirements imposed under state securities laws or by the NASD, as applicable,
so as to permit such offers.
Notwithstanding the foregoing, in no event will Fleet undertake offers in
any jurisdiction until the Fund or the Adviser has concluded that offers may be
made in such jurisdiction by Fleet in compliance with Applicable Law.
Fleet will not make offers to sell Interests except to, or otherwise
negotiate with respect to Interests except with (each such offer or negotiation
being referred to as an "Offer"), such persons whom they have reasonable grounds
to believe and do believe meet the suitability requirements (i) specified in the
Private Placement Procedures and in the Confidential Offering Memorandum
relating to the Interests (which, together with the appendices and exhibits
thereto, the subscription agreement (the "Subscription Agreement") and the
Operating Agreement, and any amendments or supplements thereto, is herein
referred to as the "Offering Materials") and (ii) of the various Blue Sky laws,
rules and regulations of the jurisdiction in which the Interests are offered.
Fleet will provide each person to whom it makes an Offer (an "Offeree") with the
Offering Materials, current as of the date of such Offer. To the extent such
person still evidences a commitment to or interest in purchasing an Interest as
of the date of any subsequent supplement or at any time thereafter, Fleet will
provide such person with a copy of the subsequent supplement. Fleet will not
provide any information or make any statements or representations to Offerees,
other than such information and statements or representations as are either
contained in the Offering Materials or are not inconsistent with information set
forth in the Offering Materials. The Adviser will make available to each
Offeree, at a reasonable time prior to the purchase of an Interest, the
opportunity to (a) ask questions of, and receive answers from, the Adviser
concerning the terms and conditions of the offering and of an investment in the
Fund, and (b) obtain any additional information, to the extent that the Adviser
possesses it or can acquire it without unreasonable effort or expense, that is
necessary to verify the accuracy of the information in the Offering Materials.
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OFFERING MATERIALS - SECURITIES LAW CONSIDERATIONS
The Fund represents and warrants that the Offering Materials, at any such
time when Interests are issued by the Fund, will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that this warranty shall not apply to statements in or omissions from
the Offering Materials made in reliance upon and in conformity with information
furnished to the Fund by Fleet for use in the Offering Materials. If at any time
during the term of the Placement Agreement the Fund learns of the occurrence of
any event affecting the Fund or any affiliated person of the Fund which, in the
opinion of the Fund's counsel, should be set forth in an amendment or supplement
to the Offering Materials in order to make the statements made therein not
misleading or to otherwise comply with Applicable Law, the Fund will promptly
cause to be prepared and made available to Fleet an appropriate amendment or
supplement, so that the Offering Materials, as so amended or supplemented, will
not contain any 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
not misleading in light of the circumstances under which they are made, or will
otherwise comply with Applicable Law.
In the event that Fleet learns of any circumstances or facts that could
make the Offering Materials inaccurate or misleading as to any material facts or
indicate that the Offering Materials are not in compliance with Applicable Law,
Fleet will promptly bring such circumstances or facts to the attention of the
Fund. Fleet will provide the Fund, and the Fund will provide Fleet, with notice
of any communication from the Securities and Exchange Commission (the "SEC"),
any state securities commissioner or any other regulatory authority concerning
the offering or sale of the Interests which might adversely affect the Fund and
of the commencement of any lawsuit or proceeding to which Fleet is a party
relating to the offering or sale of the Interests by Fleet which might adversely
affect the Fund.
The obligations described under this heading shall survive the term of this
Placement Agreement.
SUBSCRIPTIONS AND CLOSINGS
Each Offeree who wishes to purchase an Interest must complete a
Subscription Agreement with respect to such purchase and any supplementary
documentation which may be reasonably required by the Fund. Fleet agrees that it
will only submit an Offeree's Subscription Agreement to the Fund (or the Fund's
designated agent) if, on the basis of such Subscription Agreement and such other
knowledge concerning the Offeree as it may possess, Fleet reasonably believes at
the time of submission that:
(a) such Offeree is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act and otherwise meets the suitability
standards adopted by the Fund with respect to prospective purchasers of the
Interests;
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(b) such Offeree is a "qualified client" for purposes of Rule 205-3 under
the Investment Advisers Act of 1940;
(c) such Offeree has such knowledge and experience in financial and
business matters that the Offeree is capable of evaluating the merits and
risks of an investment in the Fund; and
(d) Fleet has complied with Applicable Law in connection with the offer of
the Interest to the Offeree.
In addition, Fleet will only submit an Offeree's subscription to the Fund
(or the Fund's designated agent) if, to the best of its knowledge at the time of
submission, the Offeree will acquire the Interest for which it is subscribing
solely for the Offeree's own account for investment only and not with a view to,
or with any intention of, a distribution or resale thereof, in whole or in part,
or the grant of any participation therein. If, at any time after it submits an
Offeree's subscription to the Fund (or such designated agent), Fleet becomes
aware of any fact or circumstance materially affecting the basis for its
determinations with respect to the Offeree pursuant to this paragraph, Fleet
will promptly notify the Fund and any such agent of such fact or circumstance;
this duty shall survive the term of this Placement Agreement.
Fleet acknowledges that (a) following submission of an Offeree's
subscription, such subscription will be controlled by the terms of the Offeree's
Subscription Agreement and the Operating Agreement, (b) the Fund (or the Fund's
designated agent) may reject an Offeree's subscription for any reason whatsoever
up until the date of any closing of the sale of Interests (each a "Closing") for
which the Offeree has received notice with respect to such subscription and (c)
the choice of when and if to hold one or more Closings and which potential
investors may participate in such Closings is entirely within the discretion of
the Fund.
The obligations described under this heading shall survive the end of the
termination of this Placement Agreement.
FLEET'S REPRESENTATIONS AND WARRANTIES
Fleet represents and warrants as of the date hereof that:
(a) it is a national banking association with adequate power and authority
to enter into and perform the Placement Agreement; the execution and
delivery of the Placement Agreement by Fleet has been duly and validly
authorized by all necessary action; and when executed and delivered, the
Placement Agreement will be enforceable against Fleet in accordance with
its terms (except to the extent that any enforceability of the
indemnification provisions below may be limited under Applicable Law);
(b) to the best of its knowledge, neither it nor any of its directors,
officers or employees nor any person acting on its behalf with its
permission has taken any action or done anything which would conflict with
the conditions and requirements of Applicable Law or which would make the
exemption provided for by Rule 506 of Regulation D
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unavailable or which would adversely affect the registration of or
exemption from registration of the Interests under Applicable Law (it being
understood that Fleet is not responsible for the adequacy, accuracy or
completeness of the Offering Materials under Applicable Law or any actions
or omissions on the part of the Fund or the Adviser except for statements
in or omissions from the Offering Materials made, or actions or omissions
on the part of the Fund or the Adviser taken, in reliance upon and in
conformity with information furnished to the Fund or the Adviser by Fleet
in connection with the Placement Agreement);
(c) the obligations and undertakings by Fleet under the Placement
Agreement are in compliance with Applicable Law; and
(d) there are no suits or proceedings at law or in equity or before or by
any governmental agency or any labor disputes pending or threatened, or, to
the best of Fleet's knowledge, anticipated or contemplated, nor are there
any unsatisfied outstanding judgments, orders, decrees or stipulations
affecting Fleet or to which it is, or may, to the best of Fleet's
knowledge, become, a party, which suits, proceedings, disputes, judgments,
orders, decrees or stipulations might materially adversely affect Fleet's
ability to perform the activities contemplated by the Placement Agreement;
there are no claims against Fleet pending or threatened or, to the best of
Fleet's knowledge, anticipated or contemplated, which, if valid, would
constitute or result in a breach of any representation, warranty, agreement
or undertaking set forth in the Placement Agreement.
FUND'S REPRESENTATIONS AND WARRANTIES
The Fund represents and warrants as of the date hereof that:
(a) it is a Delaware limited liability company with adequate power and
authority to enter into and perform the Placement Agreement; the execution
and delivery of the Placement Agreement by the Fund has been duly and
validly authorized by all necessary limited liability company action; and
when executed and delivered, the Placement Agreement will be enforceable
against the Fund in accordance with its terms (except to the extent that
any enforceability of the indemnification provisions below may be limited
under Applicable Law);
(b) the Fund will be on the date of any Closing at which Interests placed
by Fleet are purchased duly organized and validly existing as a limited
liability company under the laws of the State of Delaware, with full power
and authority to carry on its business as it is proposed to be conducted as
set forth in the Offering Materials;
(c) the obligations and undertakings by the Fund under the Placement
Agreement are in compliance with Applicable Law; and
(d) there are no suits or proceedings at law or in equity or before or by
any governmental agency or any labor disputes, pending or threatened, or,
to the best of the Fund's knowledge, anticipated or contemplated, nor are
there any unsatisfied outstanding
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judgments, orders, decrees or stipulations affecting the Fund, or to which
it is, or may become, a party, which suits, proceedings, disputes,
judgments, orders, decrees or stipulations might materially adversely
affect the Fund's ability to perform the activities contemplated by the
Placement Agreement; there are no claims against the Fund pending or
threatened or, to the best of the Fund's knowledge, anticipated or
contemplated, which, if valid, would constitute or result in a breach of
any representation, warranty, agreement or undertaking set forth in the
Placement Agreement.
TERM: TERMINATION
This Placement Agreement shall become effective as of the date of its
execution, and: (a) unless otherwise terminated, this Placement Agreement shall
continue in effect for two years from the date of execution, and from year to
year thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's board of directors (the "Board") or by vote of a
majority of the outstanding voting securities of the Fund, and (ii) by vote of a
majority of the members of the Board who are not interested persons of the Fund
or Fleet, cast in person at a meeting called for the purpose of voting on such
approval; (b) this Placement Agreement shall automatically terminate in the
event of its assignment; and (c) either the Fund or Fleet may terminate the
Placement Agreement (with or without cause) at any time upon notice to the other
party in accordance with the terms of the Placement Agreement.
Termination of the Placement Agreement will be without penalty to either
party.
INDEMNIFICATION AND CONTRIBUTION - FLEET
The Fund will indemnify and hold harmless Fleet, and the respective
directors, officers, agents and employees of Fleet (Fleet and each such entity
or person hereinafter referred to as a "Fleet Indemnified Person") from and
against any losses, claims, damages, judgments, assessments, costs and other
liabilities (collectively, "Fleet Liabilities"), and will reimburse each Fleet
Indemnified Person for all reasonable fees and expenses (including the
reasonable fees and expenses of counsel) (collectively, "Fleet Expenses") as
they are incurred in preparing or defending any claim, action or proceeding in
connection with pending or threatened litigation in which a Fleet Indemnified
Person is a party (collectively, "Fleet Actions") caused by, or arising out of
or in connection with, (i) any untrue statement or alleged untrue statement of a
material fact (other than untrue statements or alleged untrue statements in, or
omissions or alleged omissions from, information relating to a Fleet Indemnified
Person furnished by or on behalf of a Fleet Indemnified Person expressly for use
in the Offering Materials or with Offerees) contained in the Offering Materials
or other information furnished or made available by the Fund to Fleet or any
Offeree (including any amendments thereof and supplements thereto), (ii) any
omission or alleged omission to state therein a material fact necessary to make
the statements therein in light of the circumstances under which they were made
not misleading (other than untrue statements or alleged untrue statements in, or
omissions or alleged omissions from, information relating to a Fleet Indemnified
Person furnished by or on behalf of a Fleet Indemnified Person expressly for use
in the Offering Materials or with Offerees) or (iii) the material breach by the
Fund of any of its representations, warranties, covenants, obligations or
agreements hereunder. The Fund also agrees to reimburse each Fleet Indemnified
Person for all Fleet Expenses as they are incurred in
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connection with enforcing such Fleet Indemnified Person's rights under the
Placement Agreement.
Upon receipt by a Fleet Indemnified Person of actual notice of a Fleet
Action against such Fleet Indemnified Person with respect to which indemnity may
be sought hereunder, such Fleet Indemnified Person shall promptly notify the
Fund in writing; provided that failure so to notify the Fund shall not relieve
the Fund from any liability which the Fund may have on account of this indemnity
or otherwise, except to the extent the Fund shall have been materially
prejudiced by such failure. The Fund shall have the right to assume the defense
of any such Fleet Action including the employment of counsel reasonably
satisfactory to Fleet. Any Fleet Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Fleet Indemnified Person, unless (i) the Fund has failed promptly to assume
the defense and employ counsel or (ii) the named parties to any such Fleet
Action (including any impleaded parties) include such Fleet Indemnified Person
and the Fund, and such Fleet Indemnified Person shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the Fund; provided that the
Fund shall not in such event be responsible hereunder for the fees and expenses
of more than one firm of separate counsel, for all Fleet Indemnified Persons in
the aggregate, in connection with any Fleet Action in the same jurisdiction, in
addition to any one local counsel. The Fund shall not be liable for any
settlement of any Fleet Action effected without its written consent (which shall
not be unreasonably withheld or delayed). In addition, the Fund will not,
without prior written consent of Fleet, which consent shall not be unreasonably
withheld or delayed, settle, compromise or consent to the entry of any judgment
in or otherwise seek to terminate any pending or threatened Fleet Action in
respect of which indemnification or contribution may be sought hereunder unless
such settlement, compromise, consent or termination includes an unconditional
release of each Fleet Indemnified Person from all Fleet Liabilities arising out
of such Fleet Action.
In the event that the foregoing indemnity would by its terms be available
to a Fleet Indemnified Person but is held to be unavailable by a court of
competent jurisdiction for any reason other than because of the terms of such
indemnity, the Fund shall contribute to the Fleet Liabilities and Fleet Expenses
paid or payable by such Fleet Indemnified Person in such proportion as is
appropriate to reflect the relative benefits to the Fund, on the one hand, and
to Fleet, on the other hand, of the matters contemplated by the Placement
Agreement, and also the relative fault of the Fund, on the one hand, and of
Fleet, on the other hand, in connection with the matters as to which such Fleet
Liabilities or Fleet Expenses relate, as well as any other relevant equitable
considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation.
The reimbursement, indemnity and contribution obligations of the Fund set
forth herein shall apply to any modification of the Placement Agreement and
shall remain in full force and effect regardless of any termination of, or the
completion of any Fleet Indemnified Person's services under or in connection
with, the Placement Agreement.
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In the event Fleet or any Fleet Indemnified Person is (i) required to
appear as a witness in any action brought by or against the Fund or any
participant in a transaction covered hereby in which a Fleet Indemnified Person
is not named as a defendant or (ii) requested by the Fund to appear as a witness
or to assist the Fund in the preparation of its position in any action brought
by or against the Fund or any participant in a transaction covered hereby in
which a Fleet Indemnified Person is not named as a defendant, the Fund agrees to
reimburse Fleet for all reasonable expenses incurred by it in connection with
such party preparing and appearing as a witness or in its assistance to the Fund
for the preparation of the Fund's position and to compensate Fleet therefor in
an amount to be mutually agreed upon.
Notwithstanding the foregoing, the Placement Agreement shall not obligate
the Fund to indemnify or hold harmless any person from and against, or
contribute to any liabilities or expenses, that result from such person's
willful misfeasance, bad faith, or gross negligence or reckless disregard of
such person's obligations and duties.
INDEMNIFICATION AND CONTRIBUTION - THE FUND
Fleet will indemnify and hold harmless the Fund and its affiliates, and the
respective directors, officers, agents and employees of the Fund and its
affiliates (the Fund and its affiliates and each such entity or person
hereinafter referred to as a "Fund Indemnified Person") from and against any
losses, claims, damages, judgments, assessments, costs and other liabilities
(collectively, "Fund Liabilities"), and will reimburse each Fund Indemnified
Person for all reasonable fees and expenses (including the reasonable fees and
expenses of counsel) (collectively, "Fund Expenses") as they are incurred in
preparing or defending any claim, action or proceeding in connection with
pending or threatened litigation in which a Fund Indemnified Person is a party
(collectively, "Fund Actions") caused by, or arising out of or in connection
with, (i) any untrue statement or alleged untrue statement of a material fact
made by Fleet to any Offeree or purchaser of an Interest (other than any such
statement contained in or derived from the Offering Materials or which is based
upon information contained in the Offering Materials, or any amendment or
supplement thereto), (ii) any omission or alleged omission by Fleet to state to
any Offeree or purchaser of an Interest a material fact necessary to make the
statements made to such Offeree or purchaser not misleading in light of the
circumstances under which they were made (other than any such material fact
omitted from the Offering Materials or any amendment or supplement thereto), or
(iii) the material breach by Fleet of any of its representations, warranties,
covenants, obligations or agreements hereunder. Fleet also agrees to reimburse
each Fund Indemnified Person for all Fund Expenses as they are incurred in
connection with enforcing such Fund Indemnified Person's rights under the
Placement Agreement.
Upon receipt by a Fund Indemnified Person of actual notice of the Fund
Action against such Fund Indemnified Person with respect to which indemnity may
be sought hereunder, such Fund Indemnified Person shall promptly notify Fleet in
writing; provided that failure so to notify Fleet shall not relieve Fleet from
any liability which Fleet may have on account of this indemnity or otherwise,
except to the extent Fleet shall have been materially prejudiced by such
failure. Fleet shall have the right to assume the defense of any such Fund
Action including the employment of counsel reasonably satisfactory to Fleet. Any
Fund Indemnified Person shall have the right to employ separate counsel in any
such action and participate in the defense
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thereof, but the fees and expenses of such counsel shall be at the expense of
such Fund Indemnified Person, unless (i) Fleet has failed promptly to assume the
defense and employ counsel or (ii) the named parties to any such Fund Action
(including any impleaded parties) include such Fund Indemnified Person and
Fleet, and such Fund Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it which are different from
or in addition to those available to Fleet; provided that Fleet shall not in
such event be responsible hereunder for the fees and expenses of more than one
firm of separate counsel, for all Fund Indemnified Persons in the aggregate, in
connection with any Fund Action in the same jurisdiction, in addition to any one
local counsel. Fleet shall not be liable for any settlement of any Fund Action
effected without its written consent (which shall not be unreasonably withheld
or delayed). In addition, Fleet will not, without prior written consent of the
Fund, which consent shall not be unreasonably withheld or delayed, settle,
compromise or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened Fund Action in respect of which
indemnification or contribution may be sought hereunder unless such settlement,
compromise, consent or termination includes an unconditional release of each
Fund Indemnified Person from all Fund Liabilities arising out of such Fund
Action.
In the event that the foregoing indemnity would by its terms be available
to a Fund Indemnified Person, but is held to be unavailable by a court of
competent jurisdiction for any reason other than because of the terms of such
indemnity, Fleet shall contribute to Fund Liabilities and Fund Expenses paid or
payable by such Fund Indemnified Person in such proportion as is appropriate to
reflect the relative benefits to Fleet, on the one hand, and to the Fund, on the
other hand, of the matters contemplated by the Placement Agreement, and also the
relative fault of Fleet, on the one hand, and of the Fund, on the other hand, in
connection with the matters as to which such Fund Liabilities or Fund Expenses
relate, as well as any other relevant equitable considerations; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation.
The reimbursement, indemnity and contribution obligations of Fleet set
forth herein shall apply to any modification of the Placement Agreement and
shall remain in full force and effect regardless of any termination of, or the
completion of any Fund Indemnified Person's services under or in connection
with, the Placement Agreement.
In the event the Fund or any Fund Indemnified Person is (i) required to
appear as a witness in any action brought by or against Fleet or any participant
in a transaction covered hereby in which a Fund Indemnified Person is not named
as a defendant or (ii) requested by Fleet to appear as a witness or to assist
Fleet in the preparation of its position in any action brought by or against
Fleet or any participant in a transaction covered hereby in which a Fund
Indemnified Person is not named as a defendant, Fleet agrees to reimburse the
Fund for all reasonable expenses incurred by it in connection with such party
preparing and appearing as a witness or in its assistance to Fleet for the
preparation of Fleet's position and to compensate the Fund therefor in an amount
to be mutually agreed upon.
Notwithstanding the foregoing, the Placement Agreement shall not obligate
Fleet to indemnify or hold harmless any person from and against, or contribute
to any liabilities or
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expenses, that result from such person's willful misfeasance, bad faith, or
gross negligence or reckless disregard of such person's obligations and duties.
NON-EXCLUSIVE PLACEMENT AGENT
Fleet acknowledges that the Placement Agreement does not grant it the
exclusive right to place Interests. Fleet further acknowledges that the Fund and
its affiliates may, without limitation, offer and sell Interests and may,
without limitation, engage third parties to act as placement agents or otherwise
assist in the offer and sale of the Interests ("Other Placement Activities").
Fleet also agrees that it shall have no rights or interests in Other Placement
Activities or any profits or payments therefrom or related thereto.
GOVERNING LAW; SUCCESSORS AND ASSIGNS; CERTAIN DEFINITIONS; JURISDICTION
The Placement Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York. The Placement Agreement
shall be binding upon and inure to the benefit of (i) the Fund and Fleet, (ii)
any person to whom the provisions under the headings "Indemnification and
Contribution - Fleet" and "Indemnification and Contribution - the Fund" may
apply and (iii) the respective successors and assigns of the persons identified
in (i) and (ii), and, except as otherwise expressly provided herein, no other
person shall acquire or have any right under or by virtue of the Placement
Agreement. The term "successors and assigns" as used in the previous sentence
shall not include any purchaser or assignee, as such, of an Interest.
For the purpose of this Placement Agreement, the terms "vote of a majority
of the outstanding voting securities," "interested person," "affiliated person"
and "assignment" shall have their respective meanings defined in the 1940 Act,
subject, however, to such exemptions or no-action positions as may be granted by
the SEC or its staff under the 1940 Act.
The Fund and Fleet irrevocably and unconditionally submit to the personal
jurisdiction of any state or federal court located in New York, New York, waive
any defense based on lack of personal jurisdiction in such courts for all claims
arising out of the Placement Agreement, and agree that all such claims shall be
adjudicated in the aforementioned courts, but nothing herein shall be deemed a
waiver of any right of any party to remove any litigation to a federal court
located in New York, New York. The Fund and Fleet irrevocably and
unconditionally waive any objection that the laying of venue of any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum. In addition, the Fund and Fleet waive any right to trial by jury in any
action involving such claims and involving only parties to this agreement and/or
any Fleet Indemnified Person or Fund Indemnified Person and agree not to claim
any such right to which it might otherwise be entitled with respect to any such
action. The Fund and Fleet hereby agree that service of any process, summons,
notice or document by U.S. registered mail, return receipt requested, addressed
to the Fund and Fleet shall be effective service of process for any action, suit
or proceeding brought in any such court. The Fund and Fleet agree that a final
judgment in any such suit, action or proceeding brought in any such court will
be conclusive and binding upon the Fund and Fleet and may be enforced in any
other courts to whose jurisdiction the Fund and Fleet are or may be subject, by
suit upon such judgment.
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ENTIRE AGREEMENT; WAIVERS; AMENDMENTS; SEVERABILITY
The Placement Agreement incorporates the entire understanding of the
parties with respect to the engagement of Fleet regarding the Fund, and
supersedes all agreements regarding such engagement and entered into prior to
the date hereof (but not contemporaneously herewith). No waiver, amendment or
other modification of the Placement Agreement shall be effective unless in
writing and signed by each party to be bound thereby. Except as specifically
herein provided, no failure or delay by any party in exercising any right or
remedy hereunder shall operate as a waiver thereof, and a waiver of a particular
right or remedy on one occasion shall not be deemed a waiver of any other right
or remedy or a waiver on any subsequent occasion. If any one or more of the
provisions contained in this Placement Agreement, or any application thereof,
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and all
other applications thereof shall not in any way be affected or impaired thereby.
NOTICES; EXECUTION
All notices, demands, solicitations of consent or approval, and other
communications hereunder shall be in writing and shall be sufficiently given if
personally delivered or sent by postage prepaid, registered or certified express
mail, return receipt requested, addressed as follows: if intended for the Fund,
to it at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx
Xxxxx, and if intended for Fleet to it at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
XX 00000, Attention: Xxxxxxx Xxxxx, or to such other address or in such other
manner as any of the parties may designate by written notice. Notices shall be
deemed to have been given when personally delivered or, if mailed, on the
earlier of (i) five days after the date on which deposited in the mails, and
(ii) the date on which received; provided, that notices of a change of address
shall not be deemed given until the actual receipt thereof. The foregoing shall
not prohibit the giving of written notice in any other manner; any such written
notice shall be deemed given only when actually received.
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11
Placement Agreement
The Placement Agreement may be executed in counterparts, and such
counterparts shall together constitute one agreement binding on the Fund and
Fleet.
Please confirm that the foregoing terms correctly set forth the Placement
Agreement by signing and returning to the Fund the duplicate copy of the
Placement Agreement enclosed herewith.
COLUMBIA MANAGEMENT MULTI-
STRATEGY HEDGE FUND, LLC
By: /s/ Xxxxxxx X. Xxxxx
Name (please print): Xxxxxxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx
Name (please print): Xxxxx X. Xxxxx
Title: Managing Director
