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Exhibit (h)(2)
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, California 94104
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 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 CHARLES
SCHWAB & 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
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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 $100,000,000 (the "Initial Closing
Date") and the Company may continue to offer the remaining
unsold Units and accept subscriptions 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.
Any 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
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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.
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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
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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
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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
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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 Schwab's 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
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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 bill 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.
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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 1933 Act) 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.
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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
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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, 114 West
47th Street, New York, New York 10036, to Schwab at its
offices at Charles Schwab & Co., Inc., Attention: Jerry
Chafkin, 101 Montgomery Street, San Francisco, California
94104 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.
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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,
CHARLES SCHWAB & 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 PARTNERS III, LLC
By:
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Name:
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Title:
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Date:
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