Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SELLING AGENT AGREEMENT
[Name of Entity]
Dear Sirs and Mesdames:
This is to confirm that, in consideration of the agreements
hereinafter contained, [NAME OF ENTITY] (the "Selling Agent"), EXCELSIOR
VENTURE INVESTORS III, LLC (the "Company"), a Delaware limited liability
company registered 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 $50,000,000 (the "Initial Closing Date") and the
Company may continue to offer the remaining unsold Units and
accept subscriptions for such Units from time to time at
subsequent closings until December 31, 2000, subject to
extension by the Company's Board of Managers until May 11, 2001
(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 among the Company, PNC
Bank, Delaware (the "Escrow Agent") and PFPC Inc. (the "Escrow
Administrator"), and the funds will be invested in the Company
at each closing as described in the Prospectus. Checks should
be made payable to the Escrow Agent, and must be transmitted by
Selling Agents directly to the Escrow Administrator by 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 the Escrow
Administrator 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. NASD members agree to
abide by the rules and regulations of the NASD, including,
without limitation, the NASD Conduct Rules (including, to the
extent applicable, NASD Conduct Rules 2420, 2730, 2740 and
2750). 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) 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 (including, to the extent
applicable, NASD Conduct Rules 2420, 2730, 2740 and 2750).
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 its 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
by the 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 Investors 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:
[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 INVESTORS III, LLC
By:
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Name:
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Title:
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Date:
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