Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SELLING AGENT AGREEMENT
[Name of Entity]
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs and Mesdames:
This is to confirm that, in consideration of the agreements
hereinafter contained, [NAME OF ENTITY] (the "Selling Agent"), EXCELSIOR
VENTURE PARTNERS III, LLC (the "Company"), a Delaware limited liability
company that has elected to be treated as a business development company
under the Investment Company Act of 1940, as amended (the "1940 Act") and
XXXXXXX XXXXXX & CO., INC. ("Schwab"), the distributor for the Company,
have agreed that the Selling Agent shall serve as selling agent of the
units of beneficial interest (the "Units") of the Company.
Description of the Offering and Sale of Units.
1 Based on the terms of this Agreement, on the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein, Schwab, the distributor
for the Company pursuant to a Distribution Agreement dated
_____________________, 2000 (the "Distribution Agreement"), hereby
appoints Selling Agent to serve as a non-exclusive selling agent for
the sale and offer of the Units to be offered and sold in the
offering described below (the "Offering"), and the Selling Agent
hereby agrees to accept such appointment.
1.1 The terms of the Offering are set forth in the Company's effective
registration statement on Form N-2 filed with the Securities and
Exchange Commission (the "SEC") and the prospectus and statement
of additional information included therein relating to the Units.
Such (i) registration statement and (ii) prospectus and statement
of additional information constituting a part thereof, each as
from time to time amended or supplemented pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), the 1940 Act,
or otherwise, are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any
prospectus or statement of additional information, or amendment or
supplement thereto, shall be provided by the Company for use in
connection with the offering of the Units that differs from the
Prospectus on file at the SEC at the time the Registration
Statement becomes effective (whether or not such prospectus or
amendment or supplement thereto is required to be filed by the
Company pursuant to Rule 497 of the 1933 Act), the term
"Prospectus" shall refer to such revised prospectus and statement
of additional information as so amended or supplemented from and
after the time it is first provided to the Distributor for such
use.
1.2 The initial closing of the Offering is expected to occur on or
about the fifth business day after receipt of subscriptions for at
least $250,000,000 (the "Initial Closing Date") and the Company
may continue to accept subscriptions from time to time at
subsequent closings until December 31, 2000 (the "Subsequent
Closing Dates," and together with the Initial Closing Date, the
"Closing Dates"). Subsequent Closings of the Company will be held
at the discretion of the Company.
1.3 In effecting the purchase or sale of Units, the parties understand
and agree that Selling Agent shall act solely as agent for Schwab
and purchasers of Units, and that all purchases of Units shall be
initiated solely upon the instruction and order of the purchaser
thereof for such purchaser's account and under no circumstances
for the account of Selling Agent.
1.4 Neither the Selling Agent nor any other person is authorized to
give any information or make any representations other than those
contained in the Registration Statement or Prospectus or in any
Sales Material (as defined in Section 2.5 below) furnished or
approved by the Company for use in the sale of the Units.
1.5 Selling Agent may sell Units only pursuant to properly completed
and executed Subscription Agreements, in the form attached to the
Prospectus, and related documents provided to the Selling Agent by
Schwab or, upon notice to Schwab, by the Company from time to
time, and in accordance with the terms of the Prospectus and the
Distribution Agreement.
1.6 All subscriptions by the Selling Agent will be subject to
confirmation and acceptance by the Company, in whole or in part.
The Company reserves the right to accept or reject any such
subscription. The Company shall have full authority to take such
actions as it may deem advisable with respect to all matters
pertaining to the Offering.
1.7 Prospective investors who do not otherwise maintain a brokerage
account with Schwab or a trust account with U.S. Trust will
deposit their funds into an escrow account in accordance with the
escrow agreement between the Company and PFPC Inc. ("PFPC"), and
the funds will be invested in the Company at each closing as
described in the Prospectus. Selling Agent will be responsible for
the prompt deposit with PFPC of funds to be paid for the purchase
of Units pursuant to instruments and procedures to be provided by
the Company. Selling Agent will retain all completed and executed
subscription documents, and will immediately notify PFPC, as
transfer agent, distribution paying agent and custodian of the
Company, of the name and address of each new subscriber and the
amount of funds that each new subscriber has deposited in escrow.
1.8 The Selling Agent shall be an independent contractor and neither
the Selling Agent nor any of its directors, officers or employees
as such, is or shall be, solely by reason of this Agreement, an
employee of Schwab or the Company.
1.9 Concurrent with the effectiveness of the Registration Statement,
Schwab shall provide to the Selling Agent in writing a list,
provided to Schwab by Company, of those states and other
jurisdictions in which the Units are qualified for sale, together
with restrictions and requirements applicable thereto, and Selling
Agent will sell Units only in such states or jurisdictions and in
compliance with such restrictions and requirements.
2 Representations and Warranties of Selling Agent. Selling agent
represents and warrants to Schwab and the Company that:
2.1 Selling Agent is duly and validly organized and operating in good
standing under the laws of its state of organization, is qualified
to do business in all states where offers or sales will take
place, and is either (i) registered as a broker-dealer under
applicable federal and state securities laws and is a member in
good standing of the National Association of Securities Dealers,
Inc. (the "NASD"); or (ii) a "bank," as defined in Section 3(a)(6)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and therefore exempt from registration as a broker-dealer
under applicable federal and state securities laws and from the
membership requirements of the NASD. Selling Agent agrees to
provide immediate written notice to Schwab if it ceases to be (a)
registered and/or licensed as a broker and/or dealer under
applicable federal and state laws or fails to be a member in good
standing of the NASD; or (b) a "bank," as defined in Section
3(a)(6) of the Exchange Act.
2.2 Selling Agent has the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that
with respect to it, this Agreement is legal, valid and binding,
and enforceable in accordance with its terms.
2.3 Selling Agent is either exempt from licensing or possesses all
material government licenses, permits, certificates, consents,
orders, approvals, memberships in self-regulatory organizations
and other authorizations necessary with respect to its
qualification to perform its duties under this Agreement.
2.4 All activities by the Selling Agent, its agents and employees as
selling agent shall comply materially with all applicable federal
and state securities and banking laws, rules and regulations,
including, without limitation, the 1933 Act, the Exchange Act, the
1940 Act, the rules and regulations thereunder, and all applicable
restrictions and requirements of each state or other jurisdiction
in which the Units are qualified for sale.
2.5 Selling Agent shall not make any representation concerning the
Company or its securities except those contained in the Company's
Registration Statement and Prospectus in effect during the term of
this Agreement or any Sales Materials. "Sales Material," as used
herein, shall include, without limitation, promotional materials,
sales literature, advertisements, press releases, announcements,
circulars, research reports, market letters, performance reports
or summaries, form letters, posters, signs and other similar
materials, whether in print, hypertext, video, audio or other
media, and any items derived from the foregoing, and including
sales materials intended for wholesale use (i.e., broker/dealer
use only) or retail use. The Selling Agent agrees to deliver
copies of the Prospectus and Sales Materials to investors in
accordance with applicable laws and the rules of the SEC and
federal and state bank regulatory authorities.
2.6 During the term of this Agreement, Selling Agent agrees to notify
immediately the Company and Schwab, in writing, if it becomes
aware of any inaccurate or misleading statements in the
Prospectus; provided that the Selling Agent shall have no duty of
investigation in connection therewith.
2.7 Selling Agent agrees that it will offer Units strictly in
conformity with the provisions of this Agreement and the
Prospectus subject to Section 1.10 of this Agreement. No Units
shall be offered by the Selling Agent under any of the provisions
of this Agreement and no subscription for the purchase or sale of
Units hereunder shall be accepted by the Company if and so long as
the effectiveness of the Registration Statement shall be suspended
under any of the provisions of the 1933 Act, or if and so long as
a current prospectus as required by Section 10(b)(2) of the 1933
Act is not on file with the SEC.
2.8 With the exception of (i) listings of product offerings and (ii)
materials used by the Selling Agent on an internal basis only,
Selling Agent agrees not to furnish or cause to be furnished to
any third parties or to display publicly or publish any Sales
Materials, except such Sales Materials relating to the Company as
may be distributed to the Selling Agent by Schwab or, upon notice
to and approval by Schwab, the Company. Selling Agent agrees not
to furnish or cause to be furnished to any third parties or to
display publicly or publish any Sales Material referring to Schwab
or any of its trademarks, except, with respect to such references
only, such Sales Materials as may be approved by Schwab upon the
Selling Agent's request.
2.9 If Selling Agent is a "bank," as defined in Section 3(a)(6) of the
Exchange Act, Selling Agent will make appropriate disclosure to
purchasers that the Units are not endorsed by Selling Agent, do
not constitute Selling Agent's obligation and are not entitled to
federal deposit insurance.
2.10 All representations, warranties and covenants by Selling Agent
contained herein shall be true and correct at all times during the
term of this Agreement, and shall survive termination of this
Agreement.
3 Representations and Warranties of Schwab. Schwab represents and
warrants to Selling Agent that:
3.1 Schwab is duly organized and is validly existing as a corporation
in good standing under the laws of the State of California and is
qualified to do business in all states. Schwab is also registered
as a broker-dealer under applicable federal and state laws and is
a member in good standing of NASD. Schwab agrees to notify Selling
Agent immediately if it ceases to be registered and/or licensed as
a broker and/or dealer under applicable federal and state laws or
fails to be a member in good standing of the NASD, and Schwab
agrees to abide by the rules and regulations of the NASD,
including, without limitation, the NASD Conduct Rules.
3.2 Schwab has all the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that,
with respect to it, this Agreement is legal, valid and binding,
and enforceable in accordance with its terms.
3.3 Schwab agrees to request from the Company and provide to the
Selling Agent in a timely manner such number of copies of the
Prospectus, applicable subscription agreements, and Sales Material
as may be reasonably requested by the Selling Agent. In the event
Selling Agent elects to use such Sales Material, it is agreed that
such Sales Material shall not be used in connection with the sale
of Units unless accompanied or preceded by the Prospectus. All
Sales Materials provided to Selling Agent by Schwab shall have
been furnished to Schwab, or approved, by the Company.
3.4 The Registration Statement, Prospectus and any Sales Materials
relating to the Company provided by Schwab to Selling Agent does
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in
which they were made, not misleading with respect to any
information relating to Schwab furnished in writing to the Company
by Schwab expressly for use therein.
3.5 All representations, warranties, and agreements by Schwab
contained herein shall be true and correct at all times during the
term of this Agreement, and shall survive termination of this
Agreement.
4 Compensation. Neither the Distributor nor the Company shall have any
obligation to compensate the Selling Agent for it activities
hereunder. Compensation, if any, of the employees and agents of the
Selling Agent shall be the responsibility of the Selling Agent.
5 Indemnification.
5.1 The Selling Agent agrees to indemnify and hold harmless Schwab
(for purposes of this Section 5.1, "Schwab" shall mean Schwab, its
directors, officers, employees and agents, and any person who is
or may be deemed to be a controlling person of Schwab) from and
against any and all losses, claims, damages, liabilities and
expenses, including the reasonable costs of investigation and
attorney's fees and expenses as such expenses are incurred by
Schwab in any action or proceeding between the parties hereto or
between Schwab and any third party, to which Schwab may become
subject under the 1933 Act, the Exchange Act, the 1940 Act or
otherwise, insofar as any such loss, claim, damage, liability or
expense (or action with respect thereto) is asserted by any person
to whom the Selling Agent offered Units or who subscribes to Units
through the Selling Agent or otherwise arises from Selling Agent's
activities pursuant to this Agreement, except insofar as such
loss, claim, damage, or liability is caused by any untrue
statement or omission with respect to information relating to
Schwab furnished in writing to the Company by Schwab expressly for
use in the Registration Statement, Prospectus, or Sales Material.
5.2 The Selling Agent agrees to indemnify and hold harmless the
Company (for purposes of this Section 5.2, the "Company" shall
mean the Company, its directors, officers, employees and agents,
and any person who is or may be deemed to be a controlling person
of the Company) from and against any and all losses, claims,
damages, liabilities and expenses, including the reasonable costs
of investigation and attorney's fees and expenses as such expenses
are incurred by the Company in any action or proceeding between
the parties hereto or between the Company and any third party, to
which the Company may become subject under the 1933 Act, the
Exchange Act, the 1940 Act or otherwise, insofar as any such loss,
claim, damage, liability or expense (or action with respect
thereto) arises out of or is based on any untrue statement of a
material fact or omission with respect to information relating to
the Selling Agent furnished in writing to the Company by the
Selling Agent expressly for use in the Registration Statement,
Prospectus or Sales Material.
5.3 Schwab agrees to indemnify and hold harmless Selling Agent (for
the purposes of this Section 5.3, "Selling Agent" shall mean
Selling Agent, its directors, its officers, employees and agents
of Selling Agent, and any person who is or may be deemed to be a
controlling person of Selling Agent) from and against any and all
losses, claims, damages, liabilities or expenses (including the
reasonable costs of investigation and attorney's fees and expenses
as such expenses are incurred by Selling Agent in any action or
proceeding between the parties hereto or between Selling Agent and
any third party) to which Selling Agent may become subject under
the 1933 Act, the Exchange Act, the 1940 Act, or otherwise,
insofar as any such loss, claim, damage, liability or expense (or
action with respect thereto) arises out of or is based on any
untrue statement of a material fact contained in the Registration
Statement, Prospectus or Sales Materials, or arises out of or is
based on the failure to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that Xxxxxx'x obligation to
indemnify and hold harmless Selling Agent applies only with
respect to such statements or omissions of material fact relating
to information about Schwab furnished in writing by Schwab
expressly for use in the Registration Statement, Prospectus or
Sales Materials. No indemnity hereunder shall apply with respect
to any Prospectus or Sales Materials used by Selling Agent at a
time not authorized under the 1933 Act or the regulations adopted
thereunder, provided that Schwab or the Company has informed
Selling Agent in writing that there is no such authorization, or
Selling Agent otherwise knows that there is no such authorization.
5.4 The Company agrees to indemnify and hold harmless the Selling
Agent (for the purposes of this Section 5.4, "Selling Agent" shall
mean Selling Agent, its directors, officers, employees and agents,
and any person who is or may be deemed to be a controlling person
of Selling Agent) from and against any and all losses, claims,
damages, liabilities and expenses (including the reasonable costs
of investigating or defending such losses, claims, damages or
liabilities and any attorney's fees and expenses incurred in
connection therewith) which Selling Agent may incur (i) under the
1933 Act, the 1940 Act or otherwise, arising out of or based upon
any untrue statement, or alleged untrue statement, of a material
fact contained in (a) the Registration Statement of the Company
(including any Prospectus that is part of any such Registration
Statement) or any amendment or supplement thereto, and (b) any
Sales Materials relating to the Company provided to the Selling
Agent Company (whether or not the Selling Agent has approved the
use of such Sales Materials), or arising out of or based upon any
omission, or alleged omission, to state a material fact required
to be stated in any Registration Statement, Prospectus, or Sales
Materials or necessary to make the statements therein not
misleading; and (ii) as a result of any breach by the Company of
any representation, warranty or covenant made by the Company under
the Distribution Agreement; provided, however, that the Company's
agreement to indemnify Selling Agent (i) shall not be deemed to
cover any losses, claims, damages, liabilities or expenses arising
out of any untrue statements or representations contained in any
Registration Statement, Prospectus or Sales Material as are
furnished in writing to the Company by Selling Agent expressly for
use therein; and (ii) shall not be deemed to cover any liability
to the Company to which the Selling Agent would otherwise be
subject by reason of willful misfeasance, bad faith, and gross
negligence in the performance of its duties, or any reason of the
Selling Agent's reckless disregard for its obligations and duties
under this Agreement.
5.5 If a party seeks indemnity under this Section 5 (the "indemnified
party"), the indemnified party shall, promptly, after receipt of
notice of commencement of any action, suit or proceeding against
the indemnified party, give written notice of the commencement of
such action, suit or proceeding to the other party (the
"indemnifying party"), but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from
any obligation it may otherwise have, except to the extent that
it is actually harmed by such an omission. In case such notice of
any such action shall be so given, the indemnifying party shall
be entitled to participate at its own expense in the defense, or,
if it so elects, to assume the defense of such action, in which
event such defense shall be conducted by counsel (satisfactory to
the indemnified party) chosen by the indemnifying party;
provided, however, that the indemnifying party shall not have the
right to assume the defense of any action in which the named
parties (including any implied parties) include both parties and
in which counsel to either party has advised that there may be
legal defenses available to one party which are in conflict with
those available to the other party. If the indemnifying party
elects to assume the defense of such action and it has the right
to do so, the indemnified party shall bear the fees and expenses
of any additional counsel it retains. If the indemnifying party
does not elect to assume the defense of such action and in cases
where separate counsel is retained because of the availability of
conflicting defenses, the indemnifying party will reimburse the
indemnified party for the reasonable fees and expenses of any
counsel retained by the indemnified party. Payment (other than
the reimbursement of the indemnified party's legal and other
related fees and expenses, which will be payable to it upon
receipt by the indemnifying party of a xxxx related thereto)
shall be made upon the rendering of any final decision in such
action, suit or proceeding by a court, panel of arbitrators,
administrative agency or self-regulatory organization, or upon
any settlement of any dispute, the subject of which involves such
a claim. No such action, suit or proceeding or dispute, the
subject of which involves such a claim, shall be settled by
either party without notice to and consent by the other, which
consent shall not be unreasonably withheld.
5.6 This Section 5 shall survive the termination of this Agreement.
6 Contribution.
6.1 If the indemnification provided for in Section 5 hereof is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each party shall
contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by such party under this Agreement
or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of such party in connection
with the statements or omissions, and/or any breach of any
representation, warranty or covenant made hereunder, which
resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
6.2 The relative fault of a party shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such
party and such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
6.3 The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 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 Section 6. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 6 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission
or alleged omission.
6.4 Notwithstanding the provisions of this Section 6, neither the
Selling Agent nor Schwab shall be required to contribute any
amount in excess of the amount by which the total price at which
Company shares were offered to the public exceeds the amount of
any damages which the Selling Agent or Schwab, as the case may be,
has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
6.5 No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
6.6 This Section 6 shall survive the termination of this Agreement.
7 Termination. This Agreement shall become effective upon its execution
and shall continue in force until the earlier of the date that Schwab
notifies Selling Agent that the offer is terminated or complete or
the date set forth in the Prospectus, provided, however, that in no
case shall this Agreement remain in force beyond May 11, 2001. Prior
to the last Closing Date, this Agreement may be terminated by Schwab
or the Selling Agent immediately upon written notice to the other
party at any time. Any expenses incurred by the Selling Agent in the
performance of its efforts under this Agreement, including but not
limited to expenses related to the sale of the Units, shall be at
Selling Agent's sole expense, and the foregoing shall apply
notwithstanding the fact that the Offering is terminated for any
reason.
8 Arbitration. In the event of a dispute between the parties relating
to or arising out of this Agreement or the parties' relationship
hereunder, the parties agree to the extent permitted by applicable
law to submit the matter to arbitration in accordance with Sections
8.1, 8.2 and 8.3 below. In the event of such a dispute between the
parties:
8.1 Arbitration will be held in San Francisco, California, in
accordance with the rules and regulations of the NASD, except, in
the event that the NASD is unwilling to accept jurisdiction of the
matter, such arbitration will be held in San Francisco, California
in accordance with the rules and regulations of the American
Arbitration Association.
8.2 If the arbitration is brought by a party, the number of
arbitrators will be three (3), and they will be selected in
accordance with the rules and regulations of the NASD or American
Arbitration Association, as appropriate. The arbitrators shall be
attorneys who are from the securities industry as defined by the
applicable arbitration rules. Any award of the arbitrators will
be limited to compensatory damages and will be conclusive and
binding upon the parties. The arbitration shall be governed by
the Federal Arbitration Act, 9 U.S.C. Sections 1-16 to the
exclusion of state laws inconsistent therewith, and judgment upon
the award may be entered in any court having jurisdiction.
8.3 The prevailing party shall be entitled to an award of all costs in
connection with the arbitration, including reasonable attorney's
fees, from the panel. Any costs, fees or taxes involved in
enforcing the award shall be fully assessed against and paid by
the party resisting enforcement of the award.
8.4 Nothing in this Section 8 will prevent a party from resorting to
judicial proceedings or otherwise for injunctive relief to prevent
serious irreparable harm or injury to the parties or others, as
applicable.
8.5 In the event that a non-party to this Agreement initiates legal
proceedings (including, but not limited to, an arbitration claim
or a claim in state or Federal court) against the parties relating
to or arising out of this Agreement, the parties agree to litigate
or arbitrate in the forum in which such legal proceeding is
brought.
9 Miscellaneous.
9.1 This Agreement may be amended upon the mutual written agreement of
the parties hereto. This Agreement shall be in substitution of any
prior agreement between the parties hereto regarding the
distribution of Company shares.
9.2 The Selling Agent acknowledges that the Company reserves the right
in its discretion and without prior notice to Selling Agent,
subject to applicable law, to withdraw the offering of shares of
the Company.
9.3 All communications shall be sent to the Company at its offices at
Excelsior Venture Partners III, LLC, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, to Schwab at its offices at Xxxxxxx Xxxxxx &
Co., Inc., Attention: Xxxxx Xxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 and to Selling Agent at its offices at
[Selling Agent's address]. Notice shall be deemed to have been
given on the date it was either delivered personally to a party or
any officer or member thereof or was either received by express
delivery or telecopy (with receipt) by a party at his or her
address specified in this Agreement. A party may change the
address to which communications to it shall be sent by giving
notice thereof in accordance with this provision.
9.4 If any provision of this Agreement is found by a court or agency
of competent jurisdiction to be in violation of any state or
federal law, rule or regulation, then the invalidity of such
provision shall not affect the enforceability or validity of the
remaining provisions.
9.5 This Agreement shall be governed by and construed in accordance
with the laws of the State of California applicable to the
contracts made and to be performed entirely within such state.
9.6 This Agreement may be executed in one or more counterparts, each
of which shall constitute an original and all of which together
shall constitute one agreement.
9.7 The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part
of this Agreement.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below
indicated, whereupon it shall become a binding agreement.
Yours very truly,
XXXXXXX XXXXXX & CO., INC.
By:
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Name:
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Title:
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Date:
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ACCEPTED:
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[NAME OF ENTITY]
By:
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Name:
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Title:
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Address:
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Date:
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EXCELSIOR VENTURE PARTNERS III, LLC
By:
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Name:
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Title:
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Date:
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