FORM OF SELLING AGREEMENT
FOR
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
Dated as of: ______________
From: [Selling Agent]
To: BACAP Distributors, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Gentlemen:
We desire to enter into an agreement with you for making available
to our customers limited liability company interests ("Interests") in BACAP
Alternative Multi-Strategy Fund, LLC, a registered, closed-end management
investment company (the "Fund"), for which you are the Distributor, and which
Interests are being offered to the public at the current offering price of the
Fund (the "Offering"). Upon acceptance of this Agreement by you, we understand
that we may offer Interests and act as authorized agent for our customers'
purchase of Interests through you, subject to all of the terms and conditions
of the Offering and this Agreement and to your right, without notice, to
suspend or terminate the Offering. Accordingly, we agree to the following:
1. Interests will be made available at the current offering price in
effect at the time the order of Interests is confirmed and accepted by the
Fund or its agent. All purchase orders (which shall for purposes of this
Agreement include both orders of your customers to make initial investments in
the Fund as well as customer orders to make additional investments), and
applications of our customers submitted by us, are subject to acceptance or
rejection in your sole discretion.
2. We represent and warrant to you that we are registered as a
broker with the Securities and Exchange Commission ("SEC") under the
Securities Exchange Act of 1934 (the "1934 Act") and a member in good standing
of the National Association of Securities Dealers, Inc or we are not required
to be registered as a broker. We agree to abide by the provisions of the
Investment Company Act of 1940, as amended (the "1940 Act"), the Securities
Act of 1933, as amended, and the 1934 Act and all applicable rules and
regulations of the SEC. We further agree to comply with all other applicable
state and Federal laws and the rules and regulations of authorized regulatory
agencies. We agree that we will not offer Interests in any state or other
jurisdiction where they have not been qualified for sale or if you have not
advised us in advance that such sale is exempt from such qualification
requirements. We are responsible under this Agreement for inquiring of you as
to the jurisdictions in which Interests have been qualified for sale.
3. We will make available to our customers Interests only in
accordance with the terms and conditions of the Fund's then-current Prospectus
and Statement of Additional Information (collectively referred to as the
"Prospectus") and we will make no representations about Interests not included
in the Prospectus or in any authorized supplemental material supplied by you,
or authorized by you in writing for use. We will not use any other Offering
materials for the Fund without your written consent. We will use our best
efforts in the offer of Interests and agree to be responsible for the proper
instruction and training of all appropriate personnel in this area employed by
us, in order that Interests will be offered in accordance with the terms and
conditions of this Agreement and all applicable laws, rules and regulations.
We represent that in transmitting a purchase order for Interests that the
investor for whom we transmit the purchase order has signed the investor
application for the Fund and that we have determined that the Interest is a
suitable investment for the investor. We further represent that we will
forward purchase orders to you only on behalf of investors from whom we have
received duly executed investor certifications in the form set forth in
Appendix A to the Prospectus (the "Investor Certification") and who we
reasonably believe meet all requirements to be eligible to purchase Interests
at the time the purchase order is submitted.
4. (a) We agree to hold you harmless and indemnify you, your
affiliates, the Fund, and your and their respective officers, directors,
trustees, managers and employees (collectively, "Distributor Related
Indemnified Persons"), to the fullest extent permitted by law, from and
against any or all losses or liabilities incurred by Distributor Related
Indemnified Persons based upon, relating to or arising out of the violation of
any law, rule or regulation, or of any provision of this Agreement, by us or
by any of our officers, directors, employees or agents; provided that we shall
have no liability and shall not be required to provide indemnification under
this provision for any losses or liabilities that result from the willful
misconduct, bad faith or negligence of, or the breach of this Agreement by,
any Distributor Related Indemnified Person. If you determine to refund any
amounts paid by an investor by reason of any such violation, we shall promptly
return to you on demand any agency commissions and other selling compensation
previously paid by you to us with respect to the transaction for which the
refund is made. Furthermore, we agree to indemnify you, your affiliates and
the Fund against any and all claims, demands, controversies, actions, losses,
damages, liabilities, expenses, arbitrations, complaints or investigations,
including without limitation, reasonable attorneys' fees and court costs that
are the result of or arise directly or indirectly, in whole or in part, from
you, your affiliates or the Fund acting upon instructions for the purchase or
repurchase of Interests received through your manual or automated phone system
or the Fund/SERV program of National Securities Clearing Corporation; provided
such loss, liability or damages are not the result of the gross negligence,
recklessness or intentional misconduct of you, your affiliates or the Fund. In
connection with all purchase orders or the submission to you of tenders of
Interests in connection with any offers by the Fund to repurchase Interests
("Repurchase Offers"), we are acting as agent for our customers and each
transaction is for the account of our customer and not for our own account.
Termination or cancellation of this Agreement shall not relieve us from the
provisions of this paragraph as to transactions or occurrences arising prior
to such termination.
(b) You agree to hold us harmless and indemnify us, our officers,
directors, employees and agents (collectively, "Selling Agent Related
Indemnified Persons"), to the fullest extent permitted by law, from and
against any and all losses or liabilities incurred by Selling Agent Related
Indemnified Persons based upon, relating to or arising out of (i) the
violation of any law, rule or regulation, or of any provision of this
Agreement, by you or by any of your officers, directors, employees or agents
or (ii) any untrue statement of a material fact contained in the Fund's
Prospectus, or any omission to state a material fact required to be stated in
the Fund's Prospectus or necessary to make the statements therein not
misleading; provided that you shall have no liability and shall not be
required to provide indemnification under this provision for any losses or
liabilities that result from the willful misconduct, bad faith or negligence
of, or the breach of this Agreement by, any Selling Agent Related Indemnified
Person. We agree that you shall have no liability to us nor shall you
indemnify us for amounts of loss or liability paid in settlement of claims
without your consent, unless your consent is unreasonably withheld.
5. In consideration of services provided by us under this Agreement,
we will be entitled to receive compensation as set forth in Schedule A. All
expenses we incur in connection with our services under this Agreement shall
be borne by us.
6. In the event the Prospectus provides for a minimum holding period
in order for us to receive a dealer commission, service fee or other payment,
and Interests relating to that payment are repurchased by the Fund prior to
the termination of that holding period, we are obligated to repay you a pro
rata portion of such payment, based on the ratio of (i) the difference in the
period of time such Interests were held and the minimum holding period to (ii)
the holding period. You may recoup some or all of such amounts from and to the
extent there are any other commissions or payments due and owing from you to
us at any time, provided, however, that you are not obligated to accept
repayment only out of such other commissions or payments and may demand
payment directly from us at any time until such amounts are repaid in full. To
secure our obligation to repay such payments, we hereby grant you, and you
shall have, a security interest in any and all commissions and other payments
due us under this Agreement or under any other agreement between you and us.
7. The rate(s) of any payments for sales of Interests are subject to
change by you from time to time, and any decreases in such payments shall be
made upon 30 days' written notice, and any orders placed after the effective
date of such change, will be subject to the rate(s) in effect at the time of
receipt of the payment by you.
8. Payments for purchases of Interests made by our customers and all
necessary account information required by you to establish an account
(including the Investor Certification) shall be provided to you and received
by you no later than three business days prior to the date as of which an
investor seeks to be admitted to the Fund or to make an additional investment
in the Fund, as applicable. If such payment or other settlement information
with respect to any purchase order are not timely received by you, we
understand that you reserve the right, without notice, to cancel the purchase
order. With respect to any purchase orders for Interests, we shall retain in
our files all applications and other documents required by you to establish an
account or to settle the Fund's purchase of Interests in accordance with the
terms of the applicable Repurchase Offer. We will provide you with the
original of such documents at your request.
9. We agree that we will act as agent with respect to Interests only
if they are purchased through you as Distributor or repurchased by the Fund
from our customers. If Interests are purchased through us by our customers, we
warrant that such purchases are only for investment.
10. You may consider any purchase order we place for Interests to be
the total Interest to be held by the investor.
11. We may tender Interests (or portions of Interests) owned by our
customers to you for repurchase by the Fund in connection with any Repurchase
Offers, but only in accordance with the procedures described in the applicable
written offer to purchase by the Fund (the "Offer to Purchase"). We understand
and agree that by making a tender of an Interest (or any portion of an
Interest) on behalf of any customer in connection with a Repurchase Offer, we
represent to you that the related Offer to Purchase has been delivered to us
by the registered owner(s) of such Interest, and that the customer's letter of
transmittal pursuant to which the Interest (or portion thereof) is tendered
has been executed in the manner required by the Offer to Purchase. With
respect to such tenders, we shall furnish you with the exact account number
and amount of Interest (or portion thereof) tendered, and we shall retain in
our files all documents required by you and the Fund to effect such
transaction. We will provide you with the original of such documents prior to
the expiration of the Repurchase Offer.
12. We will comply with, and conform our practices to, any and all
written compliance standards and policies and procedures that you may from
time to time provide to us. Your obligations to us under this Agreement are
subject to the provisions of any agreements entered into between you and the
Fund.
13. We may terminate this Agreement by written notice to you, which
termination shall become effective ten days after the date of mailing such
notice to you. We agree that you have and reserve the right, in your sole
discretion without notice to us, to suspend or terminate the Offering at any
time, or, in your sole discretion, to modify, amend or cancel this Agreement
upon written notice to us of such modification, amendment or cancellation,
which shall be effective on the date stated in such notice. Without limiting
the foregoing, you may terminate this Agreement if we violate any of the
provisions of this Agreement, said termination to become effective on the date
you mail such notice to us. Without limiting the foregoing, and any provision
hereof to the contrary notwithstanding, the appointment of a trustee for all
or substantially all of our business assets, or our violation of applicable
state, Federal or foreign laws or rules and regulations of authorized
regulatory agencies will terminate this Agreement effective upon the date you
mail notice to us of such termination. Your failure to terminate this
Agreement for a particular cause shall not constitute a waiver of your right
to terminate this Agreement at a later date for the same or any other cause.
All notices hereunder shall be to the respective parties at the addresses
listed hereon, unless such address is changed by written notice sent to the
last address of the other party provided under this Agreement.
14. This Agreement shall become effective as of the date when it is
executed and dated by you below and shall be in substitution of any prior
agreement between you and us covering the Fund. This Agreement and all the
rights and obligations of the parties hereunder shall be governed by and
construed under the laws of the State of New York applicable to agreements to
be performed in New York, without giving effect to choice of law rules. This
Agreement is not assignable or transferable, except that you may without
notice or consent from us, assign or transfer this Agreement to any successor
firm or corporation which becomes the Distributor of the Fund or assign any of
your duties under this Agreement to any entity under common control with you.
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16. By signing this Agreement, we represent and warrant to you that
this Agreement has been duly authorized by us by all necessary action,
corporate or otherwise, and is signed on our behalf by our duly authorized
officer or principal.
[SELLING AGENT]
By: ____________________________________
Name:
Title:
Accepted:
BACAP DISTRIBUTORS, LLC
By: _______________________________
Name:
Title:
SCHEDULE A
FEE SCHEDULE
We shall be entitled to such compensation under paragraph 5 of this
Agreement as may be mutually agreed upon, from time to time, and as consistent
with the terms of the Distribution Agreement.
03564.0004 #372377
