EXHIBIT 99.B2(h)(ii)
As of October 11, 2002
PRIVATE AND CONFIDENTIAL
Quick & Xxxxxx, Inc.
General Counsel's Office
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This letter agreement (the "Placement Agreement") confirms our
understanding that Columbia Management Multi-Strategy Hedge Fund, LLC, a
Delaware limited liability company (the "Fund"), has engaged Quick & Xxxxxx,
Inc. ("Q&R") to act as non-exclusive placement agent to the Fund. All terms with
initial capital letters not otherwise defined in the Placement Agreement shall
have the meanings set forth in the Fund's limited liability company agreement as
in effect from time to time (the "Operating Agreement").
Q&R will act as non-exclusive placement agent for the Fund in connection
with the private placement of membership interests in the Fund (the "Interests")
to be issued by the Fund in one or more transactions (each a "Private
Placement") intended to be exempt from registration under the Securities Act of
1933, as amended (the "Securities Act") pursuant to Rule 506 of Regulation D
("Regulation D") under the Securities Act and under the applicable law and
regulations of any other jurisdictions in which the Interests are offered. The
Fund is in the process of registering with the Securities and Exchange
Commission as a closed-end management Fund in accordance with the Investment
Fund Act of 1940, as amended (the "1940 Act").
COMPENSATION TO Q&R, FEES AND EXPENSES
Q&R will not receive compensation from the Fund for its efforts under the
Placement Agreement in connection with the sale of Interests, and shall bear all
expenses it incurs in connection therewith.
OFFERS OF THE INTERESTS
By entering into the Placement Agreement, Q&R acknowledges that the
Interests are to be issued in a Private Placement and agrees to observe the
private placement procedures established from time to time by the Fund and/or by
Columbia Management Company, the Fund's investment adviser (the "Adviser"), and
communicated to Q&R in writing (the "Private Placement Procedures") in offering
the Interests. Furthermore, Q&R represents that neither it, nor anyone acting on
its behalf, either directly or indirectly through an agent, has offered or sold
or will offer or sell Interests on behalf of the Fund except in compliance with
the Private Placement Procedures or engaged or will engage in any form of
general solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
Q&R represents that it is a registered broker-dealer in good standing under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and under
the securities or Blue Sky laws of each jurisdiction in which it will offer
Interests and a member in good standing of the National Association of
Securities Dealers, Inc. ("NASD"). In addition, Q&R will otherwise comply with
the Securities Act, the Exchange Act, the 1940 Act, the securities or Blue Sky
Laws of each jurisdiction in which the offer of the Interests may be made and
any rule, regulation, judgment, order, decree or stipulation made, issued or
promulgated under any of such laws or promulgated by the NASD, to which the
offer of the Interests may be subject ("Applicable Law") in connection with its
activities pursuant to the Placement Agreement. Q&R will also comply with all
broker-dealer, agent or registered representative requirements imposed under
state securities laws or by the NASD, as applicable, so as to permit such
offers.
Notwithstanding the foregoing, in no event will Q&R undertake offers in any
jurisdiction until the Fund or the Adviser has concluded that offers may be made
in such jurisdiction by Q&R in compliance with Applicable Law.
Q&R will not make offers to sell Interests except to, or otherwise
negotiate with respect to Interests except with (each such offer or negotiation
being referred to as an "Offer"), such persons whom they have reasonable grounds
to believe and do believe meet the suitability requirements (i) specified in the
Private Placement Procedures and in the Confidential Offering Memorandum
relating to the Interests (which, together with the appendices and exhibits
thereto, the subscription agreement (the "Subscription Agreement") and the
Operating Agreement, and any amendments or supplements thereto, is herein
referred to as the "Offering Materials") and (ii) of the various Blue Sky laws,
rules and regulations of the jurisdiction in which the Interests are offered.
Q&R will provide each person to whom it makes an Offer (an "Offeree") with the
Offering Materials, current as of the date of such Offer. To the extent such
person still evidences a commitment to or interest in purchasing an Interest as
of the date of any subsequent supplement or at any time thereafter, Q&R will
provide such person with a copy of the subsequent supplement. Q&R will not
provide any information or make any statements or representations to Offerees,
other than such information and statements or representations as are either
contained in the Offering Materials or are not inconsistent with information set
forth in the Offering Materials. The Adviser will make available to each
Offeree, at a reasonable time prior to the purchase of an Interest, the
opportunity to (a) ask questions of, and receive answers from, the Adviser
concerning the terms and conditions of the offering and of an investment in the
Fund, and (b) obtain any additional information, to the extent that the Adviser
possesses it or can acquire it without unreasonable effort or expense, that is
necessary to verify the accuracy of the information in the Offering Materials.
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OFFERING MATERIALS - SECURITIES LAW CONSIDERATIONS
The Fund represents and warrants that the Offering Materials, at any such
time when Interests are issued by the Fund, will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that this warranty shall not apply to statements in or omissions from
the Offering Materials made in reliance upon and in conformity with information
furnished to the Fund by Q&R for use in the Offering Materials. If at any time
during the term of the Placement Agreement the Fund learns of the occurrence of
any event affecting the Fund or any affiliated person of the Fund which, in the
opinion of the Fund's counsel, should be set forth in an amendment or supplement
to the Offering Materials in order to make the statements made therein not
misleading or to otherwise comply with Applicable Law, the Fund will promptly
cause to be prepared and made available to Q&R an appropriate amendment or
supplement, so that the Offering Materials, as so amended or supplemented, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they are made, or will
otherwise comply with Applicable Law.
In the event that Q&R learns of any circumstances or facts that could make
the Offering Materials inaccurate or misleading as to any material facts or
indicate that the Offering Materials are not in compliance with Applicable Law,
Q&R will promptly bring such circumstances or facts to the attention of the
Fund. Q&R will provide the Fund, and the Fund will provide Q&R, with notice of
any communication from the Securities and Exchange Commission (the "SEC"), any
state securities commissioner or any other regulatory authority concerning the
offering or sale of the Interests which might adversely affect the Fund and of
the commencement of any lawsuit or proceeding to which Q&R is a party relating
to the offering or sale of the Interests by Q&R which might adversely affect the
Fund.
The obligations described under this heading shall survive the term of this
Placement Agreement.
SUBSCRIPTIONS AND CLOSINGS
Each Offeree who wishes to purchase an Interest must complete a
Subscription Agreement with respect to such purchase and any supplementary
documentation which may be reasonably required by the Fund. Q&R agrees that it
will only submit an Offeree's Subscription Agreement to the Fund (or the Fund's
designated agent) if, on the basis of such Subscription Agreement and such other
knowledge concerning the Offeree as it may possess, Q&R reasonably believes at
the time of submission that:
(a) such Offeree is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act and otherwise meets the suitability
standards adopted by the Fund with respect to prospective purchasers of the
Interests;
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(b) such Offeree is a "qualified client" for purposes of Rule 205-3 under
the Investment Advisers Act of 1940;
(c) such Offeree has such knowledge and experience in financial and
business matters that the Offeree is capable of evaluating the merits and
risks of an investment in the Fund; and
(d) Q&R has complied with Applicable Law in connection with the offer of
the Interest to the Offeree.
In addition, Q&R will only submit an Offeree's subscription to the Fund (or
the Fund's designated agent) if, to the best of its knowledge at the time of
submission, the Offeree will acquire the Interest for which it is subscribing
solely for the Offeree's own account for investment only and not with a view to,
or with any intention of, a distribution or resale thereof, in whole or in part,
or the grant of any participation therein. If, at any time after it submits an
Offeree's subscription to the Fund (or such designated agent), Q&R becomes aware
of any fact or circumstance materially affecting the basis for its
determinations with respect to the Offeree pursuant to this paragraph, Q&R will
promptly notify the Fund and any such agent of such fact or circumstance; this
duty shall survive the term of this Placement Agreement.
Q&R acknowledges that (a) following submission of an Offeree's
subscription, such subscription will be controlled by the terms of the Offeree's
Subscription Agreement and the Operating Agreement, (b) the Fund (or the Fund's
designated agent) may reject an Offeree's subscription for any reason whatsoever
up until the date of any closing of the sale of Interests (each a "Closing") for
which the Offeree has received notice with respect to such subscription and (c)
the choice of when and if to hold one or more Closings and which potential
investors may participate in such Closings is entirely within the discretion of
the Fund.
The obligations described under this heading shall survive the end of the
termination of this Placement Agreement.
Q&R'S REPRESENTATIONS AND WARRANTIES
Q&R represents and warrants as of the date hereof that:
(a) it is a New York corporation duly organized, validly existing and in
good standing under the laws of the State of New York with adequate power
and authority to enter into and perform the Placement Agreement; the
execution and delivery of the Placement Agreement by Q&R has been duly and
validly authorized by all necessary corporate action; and when executed and
delivered, the Placement Agreement will be enforceable against Q&R in
accordance with its terms (except to the extent that any enforceability of
the indemnification provisions below may be limited under Applicable Law);
(b) to the best of its knowledge, neither it nor any of its directors,
officers or employees nor any person acting on its behalf with its
permission has taken any action or
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done anything which would conflict with the conditions and requirements of
Applicable Law or which would make the exemption provided for by Rule 506
of Regulation D unavailable or which would adversely affect the
registration of or exemption from registration of the Interests under
Applicable Law (it being understood that Q&R is not responsible for the
adequacy, accuracy or completeness of the Offering Materials under
Applicable Law or any actions or omissions on the part of the Fund or the
Adviser except for statements in or omissions from the Offering Materials
made, or actions or omissions on the part of the Fund or the Adviser taken,
in reliance upon and in conformity with information furnished to the Fund
or the Adviser by Q&R in connection with the Placement Agreement);
(c) the obligations and undertakings by Q&R under the Placement Agreement
are in compliance with Applicable Law; and
(d) there are no suits or proceedings at law or in equity or before or by
any governmental agency or any labor disputes pending or threatened, or, to
the best of Q&R's knowledge, anticipated or contemplated, nor are there any
unsatisfied outstanding judgments, orders, decrees or stipulations
affecting Q&R or to which it is, or may, to the best of Q&R's knowledge,
become, a party, which suits, proceedings, disputes, judgments, orders,
decrees or stipulations might materially adversely affect Q&R's ability to
perform the activities contemplated by the Placement Agreement; there are
no claims against Q&R pending or threatened or, to the best of Q&R's
knowledge, anticipated or contemplated, which, if valid, would constitute
or result in a breach of any representation, warranty, agreement or
undertaking set forth in the Placement Agreement.
FUND'S REPRESENTATIONS AND WARRANTIES
The Fund represents and warrants as of the date hereof that:
(a) it is a Delaware limited liability company with adequate power and
authority to enter into and perform the Placement Agreement; the execution
and delivery of the Placement Agreement by the Fund has been duly and
validly authorized by all necessary limited liability company action; and
when executed and delivered, the Placement Agreement will be enforceable
against the Fund in accordance with its terms (except to the extent that
any enforceability of the indemnification provisions below may be limited
under Applicable Law);
(b) the Fund will be on the date of any Closing at which Interests placed
by Q&R are purchased duly organized and validly existing as a limited
liability company under the laws of the State of Delaware, with full power
and authority to carry on its business as it is proposed to be conducted as
set forth in the Offering Materials;
(c) the obligations and undertakings by the Fund under the Placement
Agreement are in compliance with Applicable Law; and
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(d) there are no suits or proceedings at law or in equity or before or by
any governmental agency or any labor disputes, pending or threatened, or,
to the best of the Fund's knowledge, anticipated or contemplated, nor are
there any unsatisfied outstanding judgments, orders, decrees or
stipulations affecting the Fund, or to which it is, or may become, a party,
which suits, proceedings, disputes, judgments, orders, decrees or
stipulations might materially adversely affect the Fund's ability to
perform the activities contemplated by the Placement Agreement; there are
no claims against the Fund pending or threatened or, to the best of the
Fund's knowledge, anticipated or contemplated, which, if valid, would
constitute or result in a breach of any representation, warranty, agreement
or undertaking set forth in the Placement Agreement.
TERM: TERMINATION
This Placement Agreement shall become effective as of the date of its
execution, and: (a) unless otherwise terminated, this Placement Agreement shall
continue in effect for two years from the date of execution, and from year to
year thereafter so long as such continuance is specifically approved at least
annually (i) by the Fund's board of directors (the "Board") or by vote of a
majority of the outstanding voting securities of the Fund, and (ii) by vote of a
majority of the members of the Board who are not interested persons of the Fund
or Q&R, cast in person at a meeting called for the purpose of voting on such
approval; (b) this Placement Agreement shall automatically terminate in the
event of its assignment; and (c) either the Fund or Q&R may terminate the
Placement Agreement (with or without cause) at any time upon notice to the other
party in accordance with the terms of the Placement Agreement.
Termination of the Placement Agreement will be without penalty to either
party.
INDEMNIFICATION AND CONTRIBUTION - Q&R
The Fund will indemnify and hold harmless Q&R, and the respective
directors, officers, agents and employees of Q&R (Q&R and each such entity or
person hereinafter referred to as a "Q&R Indemnified Person") from and against
any losses, claims, damages, judgments, assessments, costs and other liabilities
(collectively, "Q&R Liabilities"), and will reimburse each Q&R Indemnified
Person for all reasonable fees and expenses (including the reasonable fees and
expenses of counsel) (collectively, "Q&R Expenses") as they are incurred in
preparing or defending any claim, action or proceeding in connection with
pending or threatened litigation in which a Q&R Indemnified Person is a party
(collectively, "Q&R Actions") caused by, or arising out of or in connection
with, (i) any untrue statement or alleged untrue statement of a material fact
(other than untrue statements or alleged untrue statements in, or omissions or
alleged omissions from, information relating to a Q&R Indemnified Person
furnished by or on behalf of a Q&R. Indemnified Person expressly for use in the
Offering Materials or with Offerees) contained in the Offering Materials or
other information furnished or made available by the Fund to Q&R or any Offeree
(including any amendments thereof and supplements thereto), (ii) any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading (other than untrue statements or alleged untrue statements in, or
omissions or alleged omissions from, information relating to a Q&R Indemnified
Person furnished by or on behalf of a Q&R
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Indemnified Person expressly for use in the Offering Materials or with Offerees)
or (iii) the material breach by the Fund of any of its representations,
warranties, covenants, obligations or agreements hereunder. The Fund also agrees
to reimburse each Q&R Indemnified Person for all Q&R Expenses as they are
incurred in connection with enforcing such Q&R Indemnified Person's rights under
the Placement Agreement.
Upon receipt by a Q&R Indemnified Person of actual notice of a Q&R Action
against such Q&R Indemnified Person with respect to which indemnity may be
sought hereunder, such Q&R Indemnified Person shall promptly notify the Fund in
writing; provided that failure so to notify the Fund shall not relieve the Fund
from any liability which the Fund may have on account of this indemnity or
otherwise, except to the extent the Fund shall have been materially prejudiced
by such failure. The Fund shall have the right to assume the defense of any such
Q&R Action including the employment of counsel reasonably satisfactory to Q&R.
Any Q&R Indemnified Person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Q&R Indemnified Person,
unless (i) the Fund has failed promptly to assume the defense and employ counsel
or (ii) the named parties to any such Q&R Action (including any impleaded
parties) include such Q&R Indemnified Person and the Fund, and such Q&R
Indemnified Person shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from or in addition to
those available to the Fund; provided that the Fund shall not in such event be
responsible hereunder for the fees and expenses of more than one firm of
separate counsel, for all Q&R Indemnified Persons in the aggregate, in
connection with any Q&R Action in the same jurisdiction, in addition to any one
local counsel. The Fund shall not be liable for any settlement of any Q&R Action
effected without its written consent (which shall not be unreasonably withheld
or delayed). In addition, the Fund will not, without prior written consent of
Q&R, which consent shall not be unreasonably withheld or delayed, settle,
compromise or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened Q&R Action in respect of which
indemnification or contribution may be sought hereunder unless such settlement,
compromise, consent or termination includes an unconditional release of each Q&R
Indemnified Person from all Q&R Liabilities arising out of such Q&R Action.
In the event that the foregoing indemnity would by its terms be available
to a Q&R Indemnified Person but is held to be unavailable by a court of
competent jurisdiction for any reason other than because of the terms of such
indemnity, the Fund shall contribute to the Q&R Liabilities and Q&R Expenses
paid or payable by such Q&R Indemnified Person in such proportion as is
appropriate to reflect the relative benefits to the Fund, on the one hand, and
to Q&R, on the other hand, of the matters contemplated by the Placement
Agreement, and also the relative fault of the Fund, on the one hand, and of Q&R,
on the other hand, in connection with the matters as to which such Q&R
Liabilities or Q&R Expenses relate, as well as any other relevant equitable
considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation.
The reimbursement, indemnity and contribution obligations of the Fund set
forth herein shall apply to any modification of the Placement Agreement and
shall remain in full force and
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effect regardless of any termination of, or the completion of any Q&R
Indemnified Person's services under or in connection with, the Placement
Agreement.
In the event Q&R or any Q&R Indemnified Person is (i) required to appear as
a witness in any action brought by or against the Fund or any participant in a
transaction covered hereby in which a Q&R Indemnified Person is not named as a
defendant or (ii) requested by the Fund to appear as a witness or to assist the
Fund in the preparation of its position in any action brought by or against the
Fund or any participant in a transaction covered hereby in which a Q&R
Indemnified Person is not named as a defendant, the Fund agrees to reimburse Q&R
for all reasonable expenses incurred by it in connection with such party
preparing and appearing as a witness or in its assistance to the Fund for the
preparation of the Fund's position and to compensate Q&R therefor in an amount
to be mutually agreed upon.
Notwithstanding the foregoing, the Placement Agreement shall not obligate
the Fund to indemnify or hold harmless any person from and against, or
contribute to any liabilities or expenses, that result from such person's
willful misfeasance, bad faith, or gross negligence or reckless disregard of
such person's obligations and duties.
INDEMNIFICATION AND CONTRIBUTION - THE FUND
Q&R will indemnify and hold harmless the Fund and its affiliates, and the
respective directors, officers, agents and employees of the Fund and its
affiliates (the Fund and its affiliates and each such entity or person
hereinafter referred to as a "Fund Indemnified Person") from and against any
losses, claims, damages, judgments, assessments, costs and other liabilities
(collectively, "Fund Liabilities"), and will reimburse each Fund Indemnified
Person for all reasonable fees and expenses (including the reasonable fees and
expenses of counsel) (collectively, "Fund Expenses") as they are incurred in
preparing or defending any claim, action or proceeding in connection with
pending or threatened litigation in which a Fund Indemnified Person is a party
(collectively, "Fund Actions") caused by, or arising out of or in connection
with, (i) any untrue statement or alleged untrue statement of a material fact
made by Q&R to any Offeree or purchaser of an Interest (other than any such
statement contained in or derived from the Offering Materials or which is based
upon information contained in the Offering Materials, or any amendment or
supplement thereto), (ii) any omission or alleged omission by Q&R to state to
any Offeree or purchaser of an Interest a material fact necessary to make the
statements made to such Offeree or purchaser not misleading in light of the
circumstances under which they were made (other than any such material fact
omitted from the Offering Materials or any amendment or supplement thereto), or
(iii) the material breach by Q&R of any of its representations, warranties,
covenants, obligations or agreements hereunder. Q&R also agrees to reimburse
each Fund Indemnified Person for all Fund Expenses as they are incurred in
connection with enforcing such Fund Indemnified Person's rights under the
Placement Agreement.
Upon receipt by a Fund Indemnified Person of actual notice of the Fund
Action against such Fund Indemnified Person with respect to which indemnity may
be sought hereunder, such Fund Indemnified Person shall promptly notify Q&R in
writing; provided that failure so to notify Q&R shall not relieve Q&R from any
liability which Q&R may have on account of this indemnity or otherwise, except
to the extent Q&R shall have been materially prejudiced by such
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failure. Q&R shall have the right to assume the defense of any such Fund Action
including the employment of counsel reasonably satisfactory to Q&R. Any Fund
Indemnified Person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Fund Indemnified Person, unless (i) Q&R
has failed promptly to assume the defense and employ counsel or (ii) the named
parties to any such Fund Action (including any impleaded parties) include such
Fund Indemnified Person and Q&R, and such Fund Indemnified Person shall have
been advised by counsel that there may be one or more legal defenses available
to it which are different from or in addition to those available to Q&R ;
provided that Q&R shall not in such event be responsible hereunder for the fees
and expenses of more than one firm of separate counsel, for all Fund Indemnified
Persons in the aggregate, in connection with any Fund Action in the same
jurisdiction, in addition to any one local counsel. Q&R shall not be liable for
any settlement of any Fund Action effected without its written consent (which
shall not be unreasonably withheld or delayed). In addition, Q&R will not,
without prior written consent of the Fund, which consent shall not be
unreasonably withheld or delayed, settle, compromise or consent to the entry of
any judgment in or otherwise seek to terminate any pending or threatened Fund
Action in respect of which indemnification or contribution may be sought
hereunder unless such settlement, compromise, consent or termination includes an
unconditional release of each Fund Indemnified Person from all Fund Liabilities
arising out of such Fund Action.
In the event that the foregoing indemnity would by its terms be available
to a Fund Indemnified Person, but is held to be unavailable by a court of
competent jurisdiction for any reason other than because of the terms of such
indemnity, Q&R shall contribute to Fund Liabilities and Fund Expenses paid or
payable by such Fund Indemnified Person in such proportion as is appropriate to
reflect the relative benefits to Q&R, on the one hand, and to the Fund, on the
other hand, of the matters contemplated by the Placement Agreement, and also the
relative fault of Q&R, on the one hand, and of the Fund, on the other hand, in
connection with the matters as to which such Fund Liabilities or Fund Expenses
relate, as well as any other relevant equitable considerations; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation.
The reimbursement, indemnity and contribution obligations of Q&R set forth
herein shall apply to any modification of the Placement Agreement and shall
remain in full force and effect regardless of any termination of, or the
completion of any Fund Indemnified Person's services under or in connection
with, the Placement Agreement.
In the event the Fund or any Fund Indemnified Person is (i) required to
appear as a witness in any action brought by or against Q&R or any participant
in a transaction covered hereby in which a Fund Indemnified Person is not named
as a defendant or (ii) requested by Q&R to appear as a witness or to assist Q&R
in the preparation of its position in any action brought by or against Q&R or
any participant in a transaction covered hereby in which a Fund Indemnified
Person is not named as a defendant, Q&R agrees to reimburse the Fund for all
reasonable expenses incurred by it in connection with such party preparing and
appearing as a witness or in its assistance to Q&R for the preparation of Q&R's
position and to compensate the Fund therefor in an amount to be mutually agreed
upon.
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Notwithstanding the foregoing, the Placement Agreement shall not obligate
Q&R to indemnify or hold harmless any person from and against, or contribute to
any liabilities or expenses, that result from such person's willful misfeasance,
bad faith, or gross negligence or reckless disregard of such person's
obligations and duties.
NON-EXCLUSIVE PLACEMENT AGENT
Q&R acknowledges that the Placement Agreement does not grant it the
exclusive right to place Interests. Q&R further acknowledges that the Fund and
its affiliates may, without limitation, offer and sell Interests and may,
without limitation, engage third parties to act as placement agents or otherwise
assist in the offer and sale of the Interests ("Other Placement Activities").
Q&R also agrees that it shall have no rights or interests in Other Placement
Activities or any profits or payments therefrom or related thereto.
GOVERNING LAW; SUCCESSORS AND ASSIGNS; CERTAIN DEFINITIONS; JURISDICTION
The Placement Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York. The Placement Agreement
shall be binding upon and inure to the benefit of (i) the Fund and Q&R, (ii) any
person to whom the provisions under the headings "Indemnification and
Contribution - Q&R" and "Indemnification and Contribution - the Fund" may apply
and (iii) the respective successors and assigns of the persons identified in (i)
and (ii), and, except as otherwise expressly provided herein, no other person
shall acquire or have any right under or by virtue of the Placement Agreement.
The term "successors and assigns" as used in the previous sentence shall not
include any purchaser or assignee, as such, of an Interest.
For the purpose of this Placement Agreement, the terms "vote of a majority
of the outstanding voting securities," "interested person," "affiliated person"
and "assignment" shall have their respective meanings defined in the 1940 Act,
subject, however, to such exemptions or no-action positions as may be granted by
the Securities and Exchange Commission or its staff under the 1940 Act.
The Fund and Q&R irrevocably and unconditionally submit to the personal
jurisdiction of any state or federal court located in New York, New York, waive
any defense based on lack of personal jurisdiction in such courts for all claims
arising out of the Placement Agreement, and agree that all such claims shall be
adjudicated in the aforementioned courts, but nothing herein shall be deemed a
waiver of any right of any party to remove any litigation to a federal court
located in New York, New York. The Fund and Q&R irrevocably and unconditionally
waive any objection that the laying of venue of any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. In
addition, the Fund and Q&R waive any right to trial by jury in any action
involving such claims and involving only parties to this agreement and/or any
Q&R Indemnified Person or Fund Indemnified Person and agree not to claim any
such right to which it might otherwise be entitled with respect to any such
action. The Fund and Q&R hereby agree that service of any process, summons,
notice or document by U.S. registered mail, return receipt requested, addressed
to the Fund and Q&R shall be effective
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service of process for any action, suit or proceeding brought in any such court.
The Fund and Q&R agree that a final judgment in any such suit, action or
proceeding brought in any such court will be conclusive and binding upon the
Fund and Q&R and may be enforced in any other courts to whose jurisdiction the
Fund and Q&R are or may be subject, by suit upon such judgment.
ENTIRE AGREEMENT; WAIVERS; AMENDMENTS; SEVERABILITY
The Placement Agreement incorporates the entire understanding of the
parties with respect to the engagement of Q&R regarding the Fund, and supersedes
all agreements regarding such engagement and entered into prior to the date
hereof (but not contemporaneously herewith). No waiver, amendment or other
modification of the Placement Agreement shall be effective unless in writing and
signed by each party to be bound thereby. Except as specifically herein
provided, no failure or delay by any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, and a waiver of a particular right
or remedy on one occasion shall not be deemed a waiver of any other right or
remedy or a waiver on any subsequent occasion. If any one or more of the
provisions contained in this Placement Agreement, or any application thereof,
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and all
other applications thereof shall not in any way be affected or impaired thereby.
NOTICES; EXECUTION
All notices, demands, solicitations of consent or approval, and other
communications hereunder shall be in writing and shall be sufficiently given if
personally delivered or sent by postage prepaid, registered or certified express
mail, return receipt requested, addressed as follows: if intended for the Fund,
to it at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx
Xxxxx, and if intended for Q&R to it at General Counsel's Office, 00 Xxxxxxxx,
Xxx Xxxx, XX 00000, or to such other address or in such other manner as any of
the parties may designate by written notice. Notices shall be deemed to have
been given when personally delivered or, if mailed, on the earlier of (i) five
days after the date on which deposited in the mails, and (ii) the date on which
received; provided, that notices of a change of address shall not be deemed
given until the actual receipt thereof. The foregoing shall not prohibit the
giving of written notice in any other manner; any such written notice shall be
deemed given only when actually received.
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11
Placement Agreement
The Placement Agreement may be executed in counterparts, and such
counterparts shall together constitute one agreement binding on the Fund and
Q&R.
Please confirm that the foregoing terms correctly set forth the Placement
Agreement by signing and returning to the Fund the duplicate copy of the
Placement Agreement enclosed herewith.
COLUMBIA MANAGEMENT MULTI-
STRATEGY HEDGE FUND, LLC
By: /s/ Xxxxxxx X. Xxxxx
Name (please print): Xxxxxxx X. Xxxxx
Title: Vice President
QUICK & XXXXXX, INC.
By: /s/ Xxxx X. Xxxxxx
Name (please print): Xxxx X. Xxxxxx
Title: Executive Vice President
