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.
1. Description of the Offering and Sale of Units.
1.1 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.
1.2 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.
1.3 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, subject to
extension by the Company's Board of Managers (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.
1.4 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.
1.5 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.
1.6 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.
1.7 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.
1.8 Investors who maintain a brokerage account with Schwab or an
investment or custody account at U.S. Trust normally will have
their account debited to pay the subscription amount. Prospective
investors who do not otherwise maintain a brokerage account with
Schwab or an investment or custody account at 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. Any checks should be made payable
to PFPC, Inc., as Escrow Agent, and must be transmitted by
Selling Agents directly to the Escrow Agent noon of the next
business day after receipt. Investors who maintain a brokerage
account with Schwab or an investment or custody account at U.S.
Trust may elect to make payment by check or wire as described in
this Section 1.8. 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.
1.9 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.
1.10 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: ________________________________
Name: ________________________________
Title: ________________________________
Date: ________________________________
ACCEPTED:
--------
[NAME OF ENTITY]
By: _________________________________
Name: _______________________________
Title: ______________________________
Address: ____________________________
Date: _______________________________
EXCELSIOR VENTURE PARTNERS III, LLC
By: _________________________________
Name: _______________________________
Title: ______________________________
Date: _______________________________
